Possession

260Property Law

anyone who is in possession is entitled to redress from the courts if that possession is unlawfully threatened or invaded. The law regards any person who is in fact in possession of land or goods as lawfully in possession, and any invasion of that possession as unlawful unless made by someone with a better right to possession. In other words, once a person has acquired possession, by any means whether lawful or unlawful, they thereby become entitled to possession as against everyone except a person with a better right to possession. Consider again the example just given of a thief or squatter who takes possession of your book or land. We said there that, by taking possession in fact, the taker acquires possession in law. What this comes down to is that simply by taking possession from you, the taker thereby acquires a better right to possession than everyone except you. Two aspects of this must be emphasised here. First, if you as the owner go to court to obtain redress from the taker you will win, but not because you are the owner: you will win because, as owner, you have a better right to possession than her, the taker. For reasons we look at in Chapter 10, the courts resolve questions of disputed entitlement by looking at relative rights to possession rather than at ownership. Secondly, the law is happy to protect the possession of thieves and other unlawful takers – not, admittedly, against true owners (although, as we see in Chapters 10 and 11, it may in time come to this, through the operation of limitation of action rules), but certainly as against all other comers. Why this should be the case is considered in detail in Chapter 11, but we will also have something to say about it here, because it gives the context to pragmatic decisions made by the courts on questions of what degree of use/control amounts to the physical control required for possession.

The next, and connected, point about the relationship between ownership and possession is that possession plays a key role in the process of proving entitlement to a thing. Again, this is something that is looked at in more detail in Chapter 10, but for present purposes it is sufficient to note that it is much easier to prove possession than it is to prove ownership. Ownership is in fact rather difficult to prove. Most things – even tangible things – are not authoritatively labelled with the name of their owner, and there is no gigantic universal register on which all ownership of all things is recorded, so there is no obvious way of proving conclusively that that you do in fact own the thing (the book, the picture, the land) you say you own. Possession, on the other hand, is relatively easy to demonstrate: you can prove that you are in possession of a thing simply by demonstrating that you are in fact in exclusive physical control of the thing, with the intention of excluding all others from it. And possession is not only easier to prove than ownership, it is also a reasonably good indicator of ownership, because, as a matter of observable fact, in the vast majority of cases possession coincides with ownership. Consequently, in our system at least, the basic principle that has evolved is that possession is prima facie proof of title: if you can show that you are in possession of a thing you will be assumed by law to be the owner of it, in the absence of evidence to the contrary.