Ownership and Possession

• Author: Robert Chambers
• Pages: 14-30

14

CHAPTER 2

OWNERSHIP AND

POSSESSION

A. INTRODUCTION

Most people have an intuitive understanding of ownership and posses-

sion. We know that we can possess things 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 as 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. OWNERSHIP

There is a wide variety of dierent property rights discussed 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 has 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 usually 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 Possession15

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 with references to the “owner.” In each case,

it is necessary to see how that term is def‌ined for the purpose of that

particular statute. 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 tenant 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 possess, 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 ierent countries despite

major dierences in their legal systems:

There is indeed, a substantial similarity in the position of one who

“owns” an umbrella in Eng land, France, Russia, China, a nd any other

modern country one may care to mention. Everywhere the “owner”

can, in the simple uncomplic ated case, in which no other person has

an interest in the thing, use it, stop others using it, lend it, sell it,

or leave it by will. Nowhere may he use it to poke his neighbour in

the ribs or to knock over his vase. Ownership, dominium, propriété,

Eigentum 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 the “standard incidents” of

ownership that are common to most legal systems:

Ownership compri ses the right to possess, the 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 security, the rights or incidents of transmissibility 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.