Types of Possession

Real Estate and Property

Prepared by: Constantinople

The fact that a thing appears to be held by one person does not mean the possessory relationship has only one layer. Distinctions between original and derivative, direct and indirect, or joint possession depend on the particular relationship.

Original and Derivative Possession

A person exercising factual control as owner has a different position from someone using the thing in another capacity, such as under a lease or limited right. Giving another person use does not invariably end the owner's possessory relationship. The right recognised and the purpose of delivery are established from the documents.

Indirect and Direct Control

The person using the thing directly may be a direct possessor; a person maintaining control through the intervening legal relationship may be an indirect possessor. Who holds the keys, on whose behalf use takes place and the nature of the return relationship are assessed together. Use by several people does not, by itself, give them all the same possessory capacity.

Effect on the Dispute

The type of possession may affect who can make which claim against interference and to whom the thing must be returned. Good or bad faith is assessed separately. These distinctions must not be confused in disputes over the presumption of ownership or acquisitive prescription. The capacity at the beginning of use and any subsequent change asserted must be clarified.

Documents to Prepare for an Initial Review

Send each document in its entirety as held by you, rather than only its first page or a screenshot. We determine, according to the file, what authority is needed to obtain missing official records. The following records are helpful at the outset:

• Agreement forming the basis of use
• Delivery documents
• Key and access details
• Correspondence between the parties
• Requests for return

Why Do the Particular Circumstances Matter?

For example, leaving property with a relative to use free of charge differs from a claim that it was transferred to them as owner. Even if actual use appears identical, the agreement between the parties and the purpose of delivery affect the capacity in which possession is held.