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 dierent 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 ierent countries despite
major dierences 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.
To continue reading
Request your trialUnlock full access with a free 7-day trial
Transform your legal research with vLex
-
Complete access to the largest collection of common law case law on one platform
-
Generate AI case summaries that instantly highlight key legal issues
-
Advanced search capabilities with precise filtering and sorting options
-
Comprehensive legal content with documents across 100+ jurisdictions
-
Trusted by 2 million professionals including top global firms
-
Access AI-Powered Research with Vincent AI: Natural language queries with verified citations

Unlock full access with a free 7-day trial
Transform your legal research with vLex
-
Complete access to the largest collection of common law case law on one platform
-
Generate AI case summaries that instantly highlight key legal issues
-
Advanced search capabilities with precise filtering and sorting options
-
Comprehensive legal content with documents across 100+ jurisdictions
-
Trusted by 2 million professionals including top global firms
-
Access AI-Powered Research with Vincent AI: Natural language queries with verified citations

Unlock full access with a free 7-day trial
Transform your legal research with vLex
-
Complete access to the largest collection of common law case law on one platform
-
Generate AI case summaries that instantly highlight key legal issues
-
Advanced search capabilities with precise filtering and sorting options
-
Comprehensive legal content with documents across 100+ jurisdictions
-
Trusted by 2 million professionals including top global firms
-
Access AI-Powered Research with Vincent AI: Natural language queries with verified citations

Unlock full access with a free 7-day trial
Transform your legal research with vLex
-
Complete access to the largest collection of common law case law on one platform
-
Generate AI case summaries that instantly highlight key legal issues
-
Advanced search capabilities with precise filtering and sorting options
-
Comprehensive legal content with documents across 100+ jurisdictions
-
Trusted by 2 million professionals including top global firms
-
Access AI-Powered Research with Vincent AI: Natural language queries with verified citations

Unlock full access with a free 7-day trial
Transform your legal research with vLex
-
Complete access to the largest collection of common law case law on one platform
-
Generate AI case summaries that instantly highlight key legal issues
-
Advanced search capabilities with precise filtering and sorting options
-
Comprehensive legal content with documents across 100+ jurisdictions
-
Trusted by 2 million professionals including top global firms
-
Access AI-Powered Research with Vincent AI: Natural language queries with verified citations
