Possession (Scots law)

Possession is distinct from the concept of ownership, deriving from the same distinction found in Roman law. However, possession is commonly regarded as the foundation of ownership due its requirement in the creation of the right of ownership (such as by occupatio and within transfers of corporeal moveable property).^[5] Nicholas illustrated the difference between possession and ownership in Roman law as:

"There is an obvious distinction in ordinary language between having a thing and being entitled to have it. The thief is not entitled to what he has stolen but he nevertheless has it, and conversely the man who has pawned the ring is still entitled to it but no longer has it. The difference between being entitled to a thing and actually having it is at the root of this distinction in Roman law."^[6]

The Roman jurist Ulpian also wrote that "possession and ownership have nothing in common".^[7] Therefore the term in possession in Scots law does not relate to the right of ownership but of the factual situation in which a possessor occupies, or holds, property.^[8]

Whilst possession is a distinct concept from ownership, certain reforms have been introduced into Scots law providing protections of possessors who do not also have a valid right of ownership in the property they possess. For land, this includes the good faith protections available to deed grantees under the Land Registration (Scotland) Act 2012.^[9] The Scottish Law Commission in its Report on Prescription and Title to Moveable Property (SLC Report No 228, 2012) have recommended the introduction of protections for possessors to allow them ownership of corporeal moveable property in certain circumstances:

"The Commission recommends two new rules which would convert possession to ownership. The first would apply where the person possessing the object reasonably believes that he or she is the owner, but turns out not to be – usually because the person from whom the object was bought was not the true owner. Provided that the possessor is in good faith (and does not, for instance, have reason to believe that the object was stolen), he or she would become owner after possessing the object for a continuous period of 20 years. The second rule applies to lent or deposited property where the owner can no longer be traced. Although the rule is general in application, it is particularly aimed to help museums and galleries. Under the new rule, the holder of the object would be able to claim ownership if the owner had not been in contact for 50 years and could not be traced using reasonable diligence. This certainty of ownership will assist museums and galleries in cataloguing and managing their collections."^[10]

As of 2020, the recommendations of this Report have not been implemented into legislation by the Scottish Parliament.

There are two requirements for acquisition of possession:

The first requirement of possession is an act of body, or corpus, in which the possessor physically detains the property.^[11] There are said to be two forms of the physical act, or corpus: (1) natural possession and (2) civil possession. Both forms require some form of physical contact. With civil possession, the possessor is in indirect physical control of the property,^[12] Civil possession can apply to both heritable and moveable property (excluding incorporeal property, see below) eg: Peter rents a shop from a commercial landlord, Peter's natural possession gives his landlord civil possession. In natural possession, the possessor alone has direct physical control,^[13] eg: Susan buys a vase and collects it from the shop, Susan has natural possession of the vase.

The second requirement for possession to occur is an act of the mind, or animus, in which the possessor must have the two requisite mental states.These are (1) the intention to exercise physical control of the property and (2) the intention to exercise control for their own benefit. Combining these two intentions together, the possessor is required to have the intention to exercise physical control of the property for their own use (in Latin: animus sibi habendi).^[14] Without the mental element (animus), a holder is said to be a custodian of property and not a possessor, and does not have the right to possess the property (ius possidendi).

Traditionally in Scots law, and following from Roman law, the test for animus was whether the possessor had the mental element of possession as owner (animo domini).^[15] The result was that occupiers of the property, such as lessees (ie leaseholders) could not be said to acquire possession. However, the modern test for the act of the mind is now broader, allowing non-owners, including thieves, to acquire possession.^[16] Other jurisdictions such as English law allows any holder of property to be considered possessor except employees and temporary holders.^[17] Unlike ownership in Scots law, which is a unititular, or allodial, right, possession can be held by separate individuals, eg a tenant can possess a flat for herself and possess the flat on the landlord's behalf.^[18] Following Chief Constable of Strathclyde Police v Sharp,^[19] because unlawful takers of property are capable of acquiring possession (see below) there is no requirement that the acquiring is in good faith (bona fide).

Following an act of the body and an act of the mind, the holder of the property acquires possession under Scots law. Possession of property can continue thereafter animo solo (by act of the mind alone), so the property does not require continued physical, direct or indirect, control in order to continue possession.^[20]

Where possession has occurred, irrespective of the lawful or unlawful acquisition of the property (see below), the possessor is entitled to two presumptions in Scots law. These are (1) the possessor is a lawful possessor, and (2) the possessor is the owner of the property.^[21] In other jurisdictions, these presumptions are characterised by the phrase 'possession is nine-tenths of the law'.

Due to the rules for the acquisition of possession, it follows that there are three main forms of possession:

A possessor can be in natural possession where they hold the property personally. eg: David finds a wallet on the ground in the street and decides to keep it. David is in natural possession of the wallet.

A possessor can be in civil possession where they hold property through the natural possession of another individual. eg: Susan buys a vase from a shop but informs the shopkeeper she will collect it later. She later asks Margaret to collect the vase from the shop on her behalf, Susan is said to have civil possession of the vase.

A possessor can still be in possession of an object without physical (corpus) control over the property. This is possession animo solo, where possession is retained by act of the mind alone. eg: Susan leaves her vase in her house while she goes to the shop. Susan is still in possession of the vase by possession animo solo.

A further distinction is also made in possession between possessors who have acquired possession lawfully and possessors who take natural possession of the property unlawfully. Possessors who acquire possession lawfully, such as by the methods of delivery (see below), are known as lawful possessors.^[22] Possessors who acquire possession unlawfully, such as by theft, are termed unlawful possessors.^[23] It is recognised that unlawful dispossession occurs where the property has been taken without the consent of the possessor, or without a judicial court order authorising removal of the property from the possessor.^[24]

Possession is capable of voluntary transfer (termed delivery in Scots law) by either (1) actual delivery or (2) constructive delivery. The rules relating to transfer of possession derive from Roman law and are similar to the methods of transfer of ownership of corporeal moveable property.^[25]

Actual delivery is the physical transfer of property from the possessor personally to a new possessor.

Transfers of possession are capable of being transferred by operation of the law and are known as constructive delivery. The following methods of constructive delivery (ie: transfers of possession recognised by law) are:

This form of delivery of possession commonly occurs where a natural possessor (B) holds property for a civil possessor (A) and, with the authorisation of the civil possessor, transfers the property to a new possessor (C) by operation of constructive delivery.^[26]

Eg: Susan returns to the shop (see above) and buys three picture frames and informs the shopkeeper she will collect the frames another day, placing the shopkeeper in natural possession of the frames. She later meets Margaret and decides to let her have one of the picture frames as a gift to say thank you for collecting her vase. Susan phones the shop and tells the shopkeeper to put one of her picture frames aside for Margaret. Margaret goes to the shop and collects the frame. Margaret has acquired possession by constructive delivery.

Delivery brevi manu , or shorthand delivery, occurs where a natural possessor holds the property owned by another (the civil possessor) and the civil possessor subsequently transfers ownership to the natural possessor, thereby vesting the natural possessor with full possession.^[27] In these circumstances, the natural possessor's physical act (the corpus) occurs before the required animus (the act of the mind).^[28]

Eg: Susan goes to the shop and buys a necklace and takes it home with her. She later meets her niece Ishbel and decides to loan Ishbel the necklace to wear to a cocktail party, placing Ishbel in natural possession of the necklace while Susan retains civil possession. The next day, Ishbel phones Susan to thank her for the loan. To Ishbel's surprise, Susan says she can keep the necklace as a gift. Ishbel has acquired full possession by shorthand delivery.

Delivery longa manu, or longhand delivery, occurs where large or bulky property cannot be physically acquired by actual delivery easily. Instead, possession can be transferred by the longhand, in which the corpus (or physical act) is reduced to mere pointing or symbolic delivery alone.^[29] Possession by the longhand

Delivery longa manu to a new possessor is capable by pointing at the property alone. As Nicholas describes:

"If I wish to give you possession of a pile of logs, it is sufficient if I point them out to you; to require that you should touch them would simply be pedantic"^[30]

This rule allows property such as land or large moveable property to be easily passed by sufficient identification alone.^[31]

Delivery longa manu of property to a new possessor is also capable through the transfer of possession of a symbol of the property.^[32] The most common example, cited in Roman texts, is a warehouse of goods with the goods transferred by the symbolic delivery of a key to the warehouse.^[33] In Scots law, symbolic delivery of possession commonly occurs by transfer of the bill of lading of shipped goods.^[34]

Constitutum possessorium (i.e. a possessory agreement) is viewed as the inverse of delivery brevi manu by allowing the divested possessor to retain natural possession, but civil possession is given to the new possessor.^[35]

Eg: Ishbel sells her necklace to James as gift for his wife's birthday. However, James does not want his wife to find the necklace at home so he asks Ishbel to keep the necklace until closer to his wife's birthday. Ishbell agrees. James has acquired civil possession by constitutum possessorium (possessory agreement)

As discussed above, possession is traditionally viewed as a state of fact rather than a legal right. This follows the Roman law's principles that possession is a factual matter that gives rise to certain legal rights and remedies. However, certain possessors may also have an additional legal right to possess known as the ius possidendi (the right to possess). It is now generally viewed that the ius possidendi is a real right in Scots law, although there is little legal authority on the issue.^[36] Those without the real right of possession (the ius possidendi) have only a personal right (or right in personam) to possess the property. However, as will be explained, the real right of ius possidendi is not an autonomous standalone right in itself.^[37]

The ius possidendi is not a free standing real right in its own right, unlike all other real rights falling within the numerus clausus. Instead the ius possidendi is dependent upon an individual holding another real right in the property that entitles them to possession, ie: the ius possidendi cannot be acquired in its own right.^[38] This is commonly the case with ownership, where it is recognised that an owner has the derivative right to possession (ius possidendi) in the property he owns. With inferior real rights, the ius possidendi can be granted through a real right in lease or liferent in the property.

Whilst a general remedy is available to possessors who have been unlawfully deprived of possession, known generally as the action of spuilzie (see below), additional special possessory remedies are granted to the holders of the ius possidendi. These are:^[39]

• For corporeal moveables, an action for delivery.
• For corporeal heritable property (land), the action of removal. NB: Removal proceedings are brought where the current possessor never had consent to occupy the land from the ius possidendi rightholder ab initio (ie: from the beginning). This is commonly the case with squatters.
• For corporeal heritable property (land), the action of ejection. NB: Ejection proceedings are brought where the current possessor no longer has consent from the ius possidendi rightholder to occupy the land. This commonly occurs after a commercial tenant remains on the land after the expiration of a lease. Residential leases are dealt with under eviction proceedings in the First Tier Tribunal for Scotland (Housing Chamber).^[40]
• For corporeal heritable property (land), the action of trespass. Contrary to popular belief, trespass is a delict in Scots law.

In order to become a possessor of corporeal heritable property (ie: land), Viscount Stair, the institutional writer, says that:

"He who possessth a field, need not go about it all, or touch every turf of it, by himself or his cattle, but by possessing a part, possesseth the whole, unless there were contrary possessory acts"^[41]

This means that under Scots law, where there is a large area of land, continued possession of a single part of the plot of land will allow possession to extend to cover the entire plot, eg: possessing a house extends to possess the gardens that is part of the house's land. However, where there is a contrary possessory acts, such as another individual taking possession, that part of the land will not be considered as falling under the possessor's possession, eg: a squatter takes up camp in the garden of the house with the intent to encamp there, the squatter acquires possession by corpus and animus. The possessor of the house is no longer in possession of the garden.

Corporeal moveables, ie: property which can be physically moved such as personal items, furniture, cars etc. can be possessed with an animus and corpus. Possession of corporeal moveable property is relevant in Scots criminal law with criminal offences involving possession; such as those relating to drugs, under the Misuse of Drugs Act 1971, for possession of an illegal substance,^[42] or theft.^[43] However, it is argued by distinguished Scots law academics such as Gordon that the definition of possession in Scots criminal law is wider than its definition in Scots property law.^[44]

Due to the physical requirement of a corpus for possession to occur in Scots law, incorporeal property is not considered capable of possession. However, a real right may still be vested in an individual, such as ownership of the incorporeal thing.^[45] Additionally, statutes may create special statutory rights, or quasi real rights, in property, such as intellectual property rights (eg: patents, copyright, trademarks) that have the ability to be 'possessed' in a technical sense, albeit not a legal one due to the absence of corpus.^[46]