Ownership and Possession
| Author | Robert Chambers |
| Pages | 14-30 |
14
CHA PTER 2
OWNERSHIP AND
POSSESSION
A. INTRODUC TION
Most people have an intuitive understanding of ow nership and posses-
sion. We know that we can possess th ings without owning them (e.g.,
when we borrow a book from the library or rent an apartment), just as
we can own things that are currently possessed by others. We usually
think of ownership a s being superior to possession, but possession has
a more important role (as many students of property law are surprised
to discover). When resolving disputes over property, the common law
does not much care about who owns the thing s but merely which of the
rival claimants has the better right to possess them.
B. OW NER SHIP
There is a wide variety of dierent propert y rights discus sed in the chap-
ters that follow, including easements, estates, mortgages, and trusts. For
the most part, they are cle arly defined. Although there is uncertainty on
the boundaries bet ween legal categories, the precise nature of each of these
property rights ha s been worked out over time. Curiously, ownership is
not among them. It is a concept, not a specific right. For example, the
owner of land in a common law system is u sually the person who holds
the fee simple estate (which, as explained in t he next chapter, is the right
to possess la nd indefinitely). The owner of goods is simply the person with
Ownership a nd Possession 15
the best right to possess them. Estates and po ssession are property rights.
People with those rights are often the owners, but they might not be.
Our statutes are filled w ith references to the “owner.” In each case,
it is necessar y to see how that term is defined for the purpose of that
particular st atute. For example, the Home Owner Grant Act in British
Columbia defines “owner” to include a tenant under a lease for nine-
ty-nine years or longer.1 We do not usually think of the ten ant as being
the owner of the land, but they do star t to look the owner when land is
leased for a very long time. If I leas ed my land to you for 250 years, your
rights to posse ss, use, and enjoy the land would last for generations. In
what sense am I still the owner?
1) Professor Honoré
In 1961, Tony Honoré published an important essay on the nature of
ownership.2 He was a brilliant comparative lawyer and began by not-
ing that ownership is s urprisingly similar in d ierent countries despite
major dierences in their legal systems:
There is indeed, a subst antial simil arity in the pos ition of one who
“owns” an umbrella in Eng land, France, Russia, China, a nd any other
modern country one m ay care to mention. Every where the “owner”
can, in the simple uncomplic ated case, in which no other person has
an interest in the t hing, use it, stop others usi ng it, lend it, sell it,
or leave it by will. Nowhere may he u se it to poke his neighbour in
the ribs or to knock over h is vase. Owner ship, dominium, propriété,
Eigent um and simil ar words stand not merely for the greatest intere st
in things in p articular system s but for a type of interest with common
features tra nscending particular s ystems.3
Honoré then described what he called t he “standard incidents” of
ownership that are common to most legal system s:
Ownership compri ses the right to possess, t he right to use, the right
to manage, the rig ht to the income of the thing, the right to t he capital,
the right to secur ity, the rights or incidents of tra nsmissibilit y and
absence of term, the prohibit ion of harmful use, liabi lity to execution,
and the incident of residua rity: this makes eleven le ading incidents.4
1 RSBC 1996, c 194, s 1.
2 AM Honoré, “Ownersh ip” in AG Guest, ed, Oxford Essays in Jurisprude nce
(Oxford: Oxford Universit y Press, 1961) 107.
3 Ibid at 10 8.
4 Ibid at 113.
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