Possession

Definition of Possession

Possession in real estate is the act of having and holding property, whether through ownership or another legal right. It involves the control over and responsibility for the property. Possession can be actual, constructive, or adverse, depending on the nature and circumstances of the possession.

For a legal claim to possession, the following types are commonly recognized:

• Actual Possession: The person has physical control or occupancy of the property.
• Constructive Possession: Recognized by law even though the person may not physically occupy the property. This is often established through legal documentation.
• Adverse Possession: Possession by someone who does not have legal title but claims it through continuous occupation contrary to the rights of the true owner, fulfilling certain conditions over a statutory period.

Examples

1. Actual Possession: A homeowner living in their primary residence has actual possession of the property.
2. Constructive Possession: A landlord who owns a rental property and collects rent from tenants, without living on the property, has constructive possession.
3. Adverse Possession: A squatter living on an abandoned piece of land, maintaining the property over a legally defined period and meeting state-specific requirements, may eventually claim ownership through adverse possession.

Frequently Asked Questions (FAQs)

What are the requirements for claiming Adverse Possession?

Adverse possession requires continuous, open, notorious, exclusive, and adverse (hostile) use of the property for a set period determined by state law. Additionally, the squatter must not have the owner’s permission to use the property.

How can Constructive Possession be established?

Constructive possession is typically established through legal documentation such as title deeds, leases, or mortgages, even if the owner or right holder is not physically on the property.

Can tenants claim Possession of a rented property?

Tenants have possession rights to the property they rent for the duration of their lease. However, these rights are temporary and subject to the terms of the lease agreement.

What is the difference between Possession and Ownership?

While possession deals with control and use of property, ownership refers to the legal title and rights to dispose of the property. An owner may possess the property, but other individuals can have possessory interests without title ownership.

Related Terms with Definitions

• Ownership: The ultimate legal right to property, including the right to use, sell, or lease.
• Title: The legal documentation that proves ownership of a property.
• Lease: A contractual agreement where the landlord grants the tenant the right to use the property for a specified term in exchange for rent.
• Easement: A right for someone to use another’s property for a specific purpose.
• Landlord: The property owner who leases out the property to tenants.
• Tenant: An occupant who has the right to use the property through a lease agreement.

Online Resources

• Investopedia - Real Estate Terms
• National Association of Realtors (NAR)
• American Bar Association - Real Property

References

• “Principles of Real Estate Practice” by Stephen Mettling and David Cusic.
• “Modern Real Estate Practice” by Fillmore W. Galaty, Wellington J. Allaway, and Robert C. Kyle.

Suggested Books for Further Studies

• “Real Estate Law” by Marianne M. Jennings.
• “Real Estate Investing for Dummies” by Eric Tyson and Robert S. Griswold.
• “Real Estate Principles: A Value Approach” by David C. Ling and Wayne R. Archer.
• “The Millionaire Real Estate Investor” by Gary Keller.

Real Estate Basics: Possession Fundamentals Quiz