The concept of ownership have slowly been understand with the development of civilization. In the primitive societies, the only concept known to man was that of possession. It was until later when the idea of ownership was adopted. Since people were moving from one place to the other and had no specific areas of residence, the sense of ownership was unknown to them. This idea started to grow when they began to plant trees, cultivate lands, and build homes. The shift from the pastoral to agricultural economy assisted the development of the idea and concept of ownership.
Ownership signifies the relation between an individual and the object which is the subject matter of the ownership. A normal case of ownership is expected to depict the following incidents: first, a person (owner) will have the right to possess that object which they own. Secondly, the person has a right to utilize and enjoy the object owned. Thirdly, the owner has a right to destroy, alienate, or consume the object. Fourthly, ownership has the trait of being unspecified in duration. Fifthly, it has a residuary feature.
Despite the striking features of ownership, most people tend to confuse possession and ownership. In fact, according to most people, these two terms connote the same property. It’s only when the two words are examined through the legal lens that people are able to identify the actual difference between ownership and possession. If you possess a motorcycle, and someone else has its ownership, then the motorcycle belongs to the one owning it, unless it’s an equal ownership. It appears that these two words are inseparable and intertwined. You get a vivid distinction between possession and ownership when you take a look property laws which incorporate these concepts.
What is ownership?
The precise meaning of the word ‘own’ is to hold or have a thing. Any person who holds something as their own is the owner and has a right of ownership over such a thing. Therefore, in the non-legal sense, ownership can be defined as a right of disposal of the object at will as well as an exclusive control it.
In the legal sense, the word ‘ownership’ implies having the right over an object to the exclusion of every other person. This means non-interference by other individuals in the exercising of this right, and this has to be distinguished from just holding the object in your possession.
Therefore, ownership implies;
• The right to use,
• The right to possess,
• The right to manage,
• The right to capital,
• The right to income.
What is possession?
The control over an object, which is physical in nature, give an individual the possession of that object. For instance, if you live in a house with your family, the house is said to be in your possession and so is anything else you keep under your control. Possession doesn’t automatically translate to ownership as many occasions; people possess things temporarily. This is the case when referring to most things in our lives except for the valuables that we have bought in our name.
A thief may be in possession of a property that is stolen, which belongs to someone else. Often, the possession of any weapon by a suspected criminal is held against them as though they have used the weapon to commit a crime.
Distinction between ownership and possession
Possession is the objective recognition of ownership. Therefore, it is the external recognition of ownership. Possession is a piece of evidence that shows ownership exists. It’s a de facto exercise of a particular claim whereas ownership is the de jure realization of that claim. For that reason, ownership and possession are de facto counterparts. Possession is an external form through which legitimate claims often manifest. For instance, a rented car is actually in possession of the one who has it after it has been rented, but its ownership is vested in the one whose name is in the logbook.
On the other hand, ownership, as defined by Salmond, is the relation between an individual and any right vested in such a person. In illustrating the difference between these two terms, Salmond explained that a person is the owner of an object when their claim obtains the protection and recognition of the laws laid by the state. On the contrary, possession may be realized and exercised even in the absence of protection or recognition by the state. For that reason, ownership is guaranteed by the law whereas possession has some element of value and security from facts, without the possibility of any protection from the law.
In addition to the above, ownership is a right that is indefinite in point of the user, unlimited in duration and unrestricted in disposition. The right of property alienation is a necessary incident to ownership right, but there are a lot of restrictions pertaining to property alienation today.
Additionally, “ownership” is having utmost powers to utilize and dispose of as guaranteed by law. The owner of an object isn’t necessarily a person who at a particular time has the entirety of power to utilize and dispose; often, such an individual doesn’t exist. We must, therefore, search for that individual with the residue of the whole power after accounting for all limited and detached portions of it, and they will be the owner even when the immediate control or power and user are somewhere else.
From the above, therefore, ownership and possession differ in the style of acquisition. For instance, the transfer of possession is less technical as compared to the transfer of ownership which is usually a more technical process.
Based on the above discussion, it’s now possible to compare possession and ownership in brief. This table presents some of the differences that can be made between these two terms.
|i.||This is an absolute authority over an object or property||This is relative authority. It’s a physical control over a property|
|ii.||The right of ownership is a wider concept||Possession is only a right of consumption|
|iii.||This is a de jure concept||The concept used in possession is a de facto one|
|iv.||Ownership is a legal right depicting legal situation||This is a possessory right showing the real situation|
|v.||The rights of ownership are unlimited and uncontrolled||Possession show a limited concept of right|
|vi.||The transfer of ownership is a technical process that requires formal and legal processes, registration prerequisites||The transfer of possession is a relatively easy process which does not require registrations of any formalities|
|vii.||Ownership is a combination of possession and ownership||Possession is just but a single concept that gives no right to ownership|
|viii.||Ownership is not a priority if there’s an equal right to a similar property||Possession is the basis of priority in situations of equal rights|
|ix.||With ownership, there’s no technical transfer obstruction||Possession faces technical obstacle for transfer|
|x.||Ownership can be categorized as private, common, or collective||Possession can be categorized as criminal, actual, or constructive|
|xi.||There’s no practical of ownership in the absence of possession||Possession can create a basis for ownership as well|
It’s now clear that ownership and possession are not one and the same thing. Therefore, it’s important to know how to different these two. The best way to distinguish the two terms is to remember that; ownership is permanent, possession is temporary.