Actual Possession: Everything You Need to Know
Actual possession is a term that is used to define whether or not a person has direct, physical possession or control of an item.3 min read
Actual possession is a term that is used to define whether or not a person has direct, physical possession or control of an item.
Definition of Possession
Possession is established when a person controls, occupies, or owns something. In most cases, possession pertains to something like personal property or a plot of land. According to the United States Supreme Court, there is no word that has a more ambiguous meaning than the word possession. In fact, depending on the context in which the word is used, it can take on a number of potential meanings.
For this reason, whether or not somebody possesses something is usually at the center of controversy in many civil cases that involve real property and personal property, as well as criminal cases that involve weapons or drugs. Whether or not a tenant is able to claim possession or whether or not a defendant in a criminal case is considered to be in possession of property that has been stolen are some prime examples.
The concept of possession is as old as the ideas of ownership and private property. The laws pertaining to possession that are in place today are actually derived from ancient Rome's doctrines as they related to possession. In fact, English Natural Law borrowed heavily from the Roman ideas of possession.
Later, the British would bring their established possession laws to the New World and apply them in the colonies that were originally established in America. After the War of Independence ended, the newly formed United States court systems continued to employ these laws, expanding on the ideas of possession that have existed for hundreds of years before our legal system was established.
There are two terms many people commonly mistake for one another:
It is important to note that there is a difference between possession and ownership. Despite the fact that these two terms get confused on a regular basis, ownership does not mean the same thing as possession. You've no doubt heard the term "possession is nine-tenths of the law." You may not know, however, that there are no laws or regulations in place that actually state this. This phrase does elude to a pretty important observation, though, and typically refers to the suggestion that, if somebody possesses something, they are most likely the person that owns it.
Many people also frequently refer to things that they own, such as clothing and household items, as possessions. The person that owns an item, however, may not necessarily be the person who possesses that item. If you were to loan your car to a friend, however, the person that is borrowing and driving the car is the one that possesses it. Just because you're loaning your car to a friend doesn't mean you're giving up your ownership of the car, though.
There are quite a few distinctions between the concepts of ownership and possession. In addition, the numerous nuances associated with possession can be so complicated, even many judges and lawyers have difficulty interpreting them all. To make things simpler, the word possession is often accompanied by descriptive terms that help to further define the type of possession being referred to, such as:
- Actual possession
- Adverse possession
- Conscious possession
Definition of Actual Possession
What most people think of as possession is actually what is legally referred to as actual possession. Simply put, actual possession is physically having an item in one's personal custody or having direct control over that item. In other words, actual possession is the term that is commonly used to refer to being in immediate physical contact with the object in question. Somebody that is carrying a cellphone in their pocket, for example, is considered to have actual possession of that cellphone. As another example, if you happen to be wearing a device like a smartwatch, you have actual possession of that smartwatch.
By necessity, however, actual possession is very limited in nature. In many cases, factual evidence is used to clearly indicate whether or not a person has actual possession of an item they don't have direct physical contact with. To handle these scenarios properly, the court system has broadened the scope of consideration for possession to extend beyond the concept of actual possession.
If you need help with actual possession, you can post your legal need on UpCounsel's marketplace. UpCounsel accepts only the top 5 percent of lawyers to its site. Lawyers on UpCounsel come from law schools such as Harvard Law and Yale Law and average 14 years of legal experience, including work with or on behalf of companies like Google, Menlo Ventures, and Airbnb.