Possession

• Author: Jeffrey Lehman, Shirelle Phelps

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The ownership, control, or occupancy of a thing, most frequently land or PERSONAL PROPERTY, by a person.

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The U.S. Supreme Court has said that "there is no word more ambiguous in its meaning than possession" (National Safe Deposit Co. v. Stead, 232 U.S. 58, 34 S. Ct. 209, 58 L. Ed. 504 [1914]). Depending on how and when it is used, the term possession has a variety of possible meanings. As a result, possession, or lack of possession, is often the subject of controversy in civil cases involving real and personal property and criminal cases involving drugs and weapons?for example, whether a renter is entitled to possession of an apartment or whether a criminal suspect is in possession of stolen property.

The idea of possession is as old as the related concepts of private property and ownership. Our modern possession laws originated in the ancient Roman doctrines of possessio. English NATURAL LAW inherited most of the Roman possession ideas, and later the British brought their law of possession to the American colonies. Following the WAR OF INDEPENDENCE, state and federal courts continued to use and expand upon the historical notions of possession.

Possession versus Ownership

Although the two terms are often confused, possession is not the same as ownership. No legal rule states that "possession is nine-tenths of the law," but this phrase is often used to suggest that someone who possesses an object is most likely its owner. Likewise, people often speak of the things they own, such as clothes and dishes, as their possessions. However, the owner of an object may not always possess the object. For example, an owner of a car could lend it to someone else to drive. That driver would then possess the car. However, the owner does not give up ownership simply by lending the car to someone else.

The myriad distinctions between possession and ownership, and the many nuances of possession, are complicated even for attorneys and judges. To avoid confusion over exactly what is meant by possession, the word is frequently modified by adding a term describing the type of possession. For example, possession may be actual, adverse, conscious, constructive, exclusive, illegal, joint, legal, physical, sole, superficial, or any one of several other types. Many times...