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Legal Possession of Property

Posted 10. November 2022 by Logistik-Express in Allgemein

Owning real estate is a matter of physical fact. Having the right or legal right to possession is not possession. Possession is a physical concept, not a right. As Black`s Law Dictionary says, possession is “the possession or holding of property in one`s power.” This power means having physical dominance and control over property. This dominance and control can be exercised by excluding others or letting others in. It is the fact of this physical control that is possession. This power could be exercised legally or illegally. It could be exercised in a way that constitutes a violation of the law. But in any case, it is the physical fact, the fact of having or holding property in one`s power and control, which constitutes possession. In the development of the civil (or Roman) legal system, property tended to take on more importance than property rights, and the same is true of the common law (or Anglo-American) system.

Therefore, possession tends to be seen as prima facie evidence of property rights; There is this right against everyone except the rightful owner. The mere possession by a discoverer is sufficient to establish a claim against someone who refuses him the object without a better right than his own. In civil law countries, possession is not a right, but a (legal) fact that enjoys some protection by law. It may provide proof of ownership, but as such does not satisfy the burden of proof. For example, ownership of a house is never proven by mere possession of a house. Possession is a de facto state of exercising control over an object, whether it is the owner or not. Only legal (the owner has a legal basis), bona fide (the owner does not know that he does not have the right of possession) and regular (not acquired by force or deception) possessions can become property over time. An owner enjoys a certain judicial protection against third parties, even if he is not the owner. A temporary transfer of possession is called a deposit. Surety is often thought of as the separation of ownership and possession. For example, the library retains ownership of the book as long as you own it and has the right to take it back when your right is exhausted. A common transaction with a deposit is a conditional sale or hire purchase, where the seller leaves the buyer in possession of the item before it is paid.

The buyer pays the purchase price in installments and when paid in full, ownership of the item passes from the seller to the buyer. A bona fide buyer is a person who has purchased a property for consideration without any defect being found in the seller`s title. If a seller indicates to a buyer that he has the property or authority to sell a particular item, the seller will be prevented (prevented) from refusing such assurances if the buyer resells the property to a buyer in good faith at a favorable price without realizing the rights of the true owner. At common law, this forfeiture did not apply where an owner brought an article to a merchant for service or repair and the merchant illegally sold the movable property. However, the bona fide buyer was subsequently protected in these circumstances by the UNIFORM COMMERCIAL CODE adopted in all states. Legal possession is the acquisition of a significant degree of physical control over a physical thing, such as land or movable property, or the legal right to control an intangible asset such as a loan, with the clear intention of ownership. In terms of land and chattel, possession may have started as a physical fact, but possession today is often an abstraction. For example, an officer or employee may have custody of an object, but he or she has no possession; His employer does this, even if he is thousands of miles away from the object he owns. Moreover, except in the most abstract way, it is not possible to speak of possession of intangible assets. Upon membership, the personal property of one owner is physically tied to the property of another, so that it becomes a part of it and loses any distinct identity. Membership can make an owner`s personal possessions much more valuable through someone else`s work. This happens when personal property becomes a completely new thing, such as when grapes are turned into wine or wood into furniture.

A LEASE is the legal temporary possession of property by a person other than the true owner. The person who entrusts his property in the hands of others is called guarantor. The person who owns the property is called Bailee. Typically, a deposit is provided for a specific purpose agreed upon by the parties. For example, if a person pawns a diamond ring, he is the guarantor and the operator of the pawnshop is the guarantor. The pawnshop keeps the ring for an agreed period of time as collateral for the loan to the depositary. The depositor has the right to repossess the ring by repaying the loan on time. If the guarantor does not repay the loan on time, he acquires ownership of the ring and can sell it. Possession may be acquired by a unilateral act by which control of the facts is established. This can take the form of arrest (removal of an object that is not in the possession of a person) or seizure (removal of an object in his possession). It can also be obtained through a bilateral process of transfer of ownership from one party to the other. The party handing over the property must intend to do so.

LexisNexis® and Bloomberg Law are external online distributors of ALM`s extensive collection of current and archived versions of legal news publications. LexisNexis® and Bloomberg Law clients may access and use ALM content, including content from the National Law Journal, The American Lawyer, Legaltech News, New York Law Journal and Corporate Counsel, as well as other sources of legal information. In common law countries, possession itself is a property right. The owner of property has the right of possession and may assign this right in whole or in part to another person, who may then also assign the right of possession to a third party. For example, a residential property owner may transfer ownership to a property manager under a property management contract, who may then transfer ownership to a tenant under a lease. There is a rebuttable presumption that the owner of property also has the right of possession, and evidence to the contrary may be presented to determine who has the legal right of possession in order to determine who should actually have possession of it, which may include proof of ownership (without transfer of ownership) or proof of a right of possession without superior ownership. Possession of a thing long enough can become property by terminating the right of possession and property rights of the previous owner. Similarly, the passage of time may terminate the owner`s right to regain exclusive possession of property without losing ownership, as if a court were to grant an adverse easement of use. The idea of possession is as old as the related concepts of private property and property. Our modern property laws have their origins in ancient Roman doctrines of possession.

English natural law inherited most Roman property ideas, and later the British brought their property rights to the American colonies. After the Revolutionary War, state and federal courts continued to use and develop historical concepts of ownership. The myriad distinctions between possession and possession, and the many nuances of possession, are complicated even for lawyers and judges. To avoid confusion about what exactly is meant by possession, the word is often modified by adding a term that describes the type of possession. For example, possession may be real, harmful, conscious, constructive, exclusive, illegal, common, legal, physical, alone, superficial, or of several other types. Often these modifiers are combined, as in “joint constructive property”. However, all of these different types of possession flow from what the law calls “actual possession.” It is possible to want to own something without knowing that it exists. For example, if you intend to own a suitcase, you intend to own its contents even if you don`t know what`s in it. It is important to distinguish between sufficient intent to possess something and intent to commit the crime of illegal possession of something such as prohibited drugs, firearms or stolen property.

[1] The intention to exclude others from the suitcase and its contents does not necessarily imply an intention to possess illegally. POSSESSION, intern. Law. Possession refers to land held by no title other than simple conquest. 2. In this sense, possession is distinct from a dependency that rightfully belongs to the land that governs it; and the colony, which is a country populated by citizens or subjects of the mother country. 3 Lav. C.

C. R. 286. Personal property can be divided into two main categories: tangible and intangible. Tangible objects include items such as animals, goods, and jewelry. Intangible assets include rights such as shares, bonds, patents, and copyrights. In law, possession is the control that a person intentionally exercises over a thing. Like property, the possession of everything is usually regulated from one country to another by property law. In any case, to possess something, a person must intend to possess it.

A person may be in possession of property (although possession does not always mean ownership). Subject to the doctrine of membership, personal property may become immovable property through its transformation into an institution.

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