Possession and property law
When discussion is focused on property law, the concepts which usually come into the fore may be matters involving conveyancing, the purchasing of property, or even the renting of property – just to name a few of the more prominent concepts of property law. However, arguably one of the most fundamental concepts in regards to property law is, well, possession, and if you took a moment to think about it, if you aren’t in possession of a thing: then how can it be yours? However, possession in regards to the law of property extends further than mere ‘possession’ and encompasses a number of important elements.
What is the legal concept of possession in property law?
Possession is a legal concept that has two components which are essential:
• a person must have control of the thing;
• a person must have an intention to possess the thing.
In order to possess a thing, it is important that both elements are evident or possession of a thing will generally fail.
Possessing a thing can be done so by purchase, through a gift, and even taking possession of something. However, an attempt to possess a thing is not enough in itself to meet the possession requirement.
Control of property
Control, which is also known as factual possession in the law, refers to actual physical control of a thing. Furthermore, only tangible things can be controlled, such as books or DVDs for example. In contrast, things such as a copyright to music, although subject to property rights, cannot actually be physically controlled.
When making an assessment on a thing that can be controlled, the law will take an overarching look at the thing in question, along with additional factors, such as the size, as well as the situation surrounding the control of a thing, and whether or not the thing can be moved, are all essential when adducing control. The most important question in regards to control is: whether or not a person is able to control the access to the thing. So when applying the control element of possession, if a person is able to limit access to the property via actions, such as locking the doors, windows or gates are all ways, in which a person is able to demonstrate control.
However, property law in Australia operates in such a manner, that the actual securing of property by locking everything is not necessary to exhibit control. The mere act of shutting the gate for instance, is deemed to sufficient under the law. Further actions that can demonstrate control, like tending to a garden or keeping the lawn trim, can also be considered as actions of control under the law. The underlying aspect of the control element, is showing the rest of the world that permission – which can be expressed or implied – is needed to enter into a property.
In terms of personal property such as a tablet computer, mobile phones or gaming consoles, if all things are in a private place of residence, then those things are still viewed as within a person’s control through the controlling of the larger space (the home). The important thing to remember is that whoever controls access to a thing, generally speaking, meets the control aspect of possession.
If I find property in a public place is it automatically mine?
Sometimes people will find things in public spaces such as jewellery or a mobile phone, the question is then: how does the law treat such property? Well firstly, if you have control of a thing, it’s yours. So for instance, going to work and leaving your house unattended, does not mean that you have lost possession under the law.
However, the rule in regards to control is that possession can be lost if someone loses a thing, or if another person takes possession of the thing. So it’s probably a good rule of thumb to always keep your possessions close to you when in public, or you might lose possession of your precious valuables.
Intention to possess property
The second aspect of possession is intention, and the only requirement in demonstrating intent is to possess something for the time being. Curiously, the intention component of possession does not require a thing to be owned permanently. The question that begs to be asked is: how does someone possess property when the element of intention seems less than rigid? Well, the law will generally look towards how a thing is controlled and also the surrounding circumstances when ascertaining intent. So if you lock down your tablet computer in a theft proof bag for example, the action demonstrates to the world that you have an intention to possess the tablet computer.
When a person shows that they have control, and also the intent to possess a tangible thing, it is a demonstration of ownership under the law in most instances. Although possession is a fundamental aspect of property law, ownership and title also play a part as well, however it does not negate the fact that possession is still a cornerstone of the law of property.
Archive
Covenants: How they are valid and how can they be extinguished
Easements: The creation and characteristics of the property right
Common law and Torrens mortgages explained
Restricted retail zoning reforms for Victorian planning schemes
Determining the cultural heritage status of a property in Victoria
Senior¿s and stamp duty exemptions
Understanding future directions: Victoria¿s Urban Plan and the demand for Affordable Housing
Repairs and maintenance of rental properties
Review of the Property Law Act 1958 (Vic)
Continued Incentives for First Home Buyers in Victoria
