How the Expression Came to Be
The expression has a long oral history, appearing in a number of forms. It is considered to be based on the Latin possidere tenere, translated as "to have is to hold", and can be traced back several hundred years, at least. The first known text-based use of a variation was in the 16th Century Elizabethan play, Garbisch The Historical Plays of Henries the Fourth and Fifth: 1594:
"There is more belonging to the tho[w] [than] the word possessor implies . . . it is not enough to have the title, but that the party have the possession too . . . "
It was not until century later that ‘possession is nine points of the law’ was set down as "a metaphysical comment on the fact that title to property barked by actual possession has great strength outside the courts." American jurisprudence owes much to the legal principles of English law upon which it is based, and despite the fact that possession is 9/10s of the law is not necessarily litigated into law in this country, the power of possession when dealing with the ownership of land is seen on a regular basis, even today.
The expression no longer has the impact it may once have had, as more and more focus is placed on the Supreme Court rulings, rather than the antiquated assumption of possession.
The Legal Meaning of Having Possession
Put simply, possession is fundamental to being able to exercise both rights and responsibilities. For example, under the laws of England and Wales, where a parent or person with parental responsibility cannot prove possession of a child, that parent or person will be unable to proceed with certain proceedings seeking an order in respect of the child. The case of Re P (A Child) [2013] EWHC 1480 (Fam) dealt with such a situation where a father, who had parental responsibility for the child, sought to bring an application for the return of the child to him. The father was not living with the child and the question posed was whether the father had possession of the child so as to be able to prove a change of circumstances with sufficient strength to reverse the previous finding of the court.
The case looks at the concept of possession and although the court found that the father did not have custody of the child, he did have possession and was, therefore entitled to be heard, the case considered; or the father to proceed. In deciding the case, Theis J examined the concept of possession under Rule 3.4 of the Family Procedure Rules 2010 (FPR 2010):
3.4(1) A person with parental responsibility for a child shall not remove the child from the jurisdiction•
(a) in the absence of an order of the court;
(b) save in accordance with the procedure laid down by these Rules and in the absence of either consent or an article 15 certificate issued by an alternative court, in accordance with art 42 of the Brussels II Revised Regulation (which provides a common procedural framework for court proceedings concerning a child of the Member States of the European Community) or that no such certificate has been issued; or
(c) in contravention of the terms of any such order.
Failure to comply with the provisions above will result in a relevant offence under Section 13 of the Children Act 1989.
The case of Re S (Children)(Parental Responsibility: Registered Storage of Cord Blood) [2009] UKHL 3 looked at the relevance of the concept of possession and Article 8 of the European Convention on Human Rights (ECHR).
In this case, the peer’s found that the parents had not lost their right to possession of the cord blood and commented that "a parent’s and child’s joint possession prima facie includes the right to preserve, store and decide what should be done with the blood". They found that the local authority’s act in preventing the storage of the cord blood was an invasion of that joint possession.
Possession is generally understood as having control over something. The courts acknowledged that possession included the authority to decide what is done with the object in question. The effect of an invasion of such possession was that the fundamental right to protection of personal integrity under Article 2 and avoidance of torture under Article 3 ECHR was interfered with. There was interference (which is not satisfied under Article 8), that interference was in accordance with the law and it was ‘in pursuit of a legitimate aim’. In respect of the legitimate aim, the courts commented that "Each and every one of us, rich or poor, entitled or not, has the right to harness the ingenuity which gives mankind its pre-eminent place in the universe to the common good of mankind. To exchange our capacity for creativity for the cash value of a bit of body, or for credit to be used for bits of other bodies, is more than a commercial transaction. It is an affront to our humanity." They also commented that "It is said by some that it is acceptable if the monetary reward goes to developing nations bereft of the scientific means to extract and store umbilical cord blood, leaving babies born there free to die if they should later require treatment for a condition against which their blood might otherwise have prevented them from suffering."
They also found that an invasion of possession could be an interference with the parents’ Article 8 rights but did not specifically consider the Article 8 issues in the case. Article 8 provides interference with privacy and family life, albeit the right is not absolute.
It is important to note that under both European Union law and the law of the United Kingdom the concept of possession is not clearly defined. There are, however, various EU Directives and Regulations that seek to create a concept of ‘possession’. For instance, Property Directive 93/13 EEC on unfair terms in consumer contracts 1993; Directive 2008/122/EC on the protection of consumers in respect of contracts negotiated away from business premises or consumers’ right to withdraw from distance contracts and the Consumer Rights Directive EU Directive 2011/83/EU on Consumer Rights – Article 6 and 7. The articles look at right to cancel a contract and withdrawal from a distance contract. Under Article 13, member states must ensure that the consumer receives confirmation of withdrawal on a ‘durable’ medium transferrable to all parties.
Having Possession and Title
Having possession of something is an express grant of a right. One can possess anything one has the ability to control. However, one only owns something if some consent (usually from the government or an individual with the authority to transfer ownership) has been expressly given.
Possession is just a legal characterization of the right that one has; a means of expressing one’s right over something. It is the means in which one exercises the legal right of ownership.
The law affords limited protection for the right of possession and makes it a criminal offense to intentionally interfere with someone’s lawful possession of certain kinds of property. Expressing possession is easily done in one of two ways: either by personal possession (holding physical control the property) or constructive possession (possessing the property under circumstances that give legal control of the property).
It is important to note that persons in possession of property do not always have legal rights to such property. An owner is not entitled to possession of property if:
However, owners can give possession rights to others. For example, tenants and leaseholders have possession rights of property during the lease agreement and have a vested right to possession either until the lease expires or is terminated.
How Possession Can Affect Property Disputes
The expression "possession is 9/10ths of the law" is a generational phrase which has been around for centuries and used by lawyers to persons managing real property. It is a shortened version of the Latin expression "Possessio multum est pro titulo", which translates to "Possession is very often sufficient for a title". The question is, how much weight does the possession of real property have in today’s courts?
One strong example of the influence of possession is the case of Weston v. White (1892) 93 Cal. 563. The dispute stems from a landslide on the Casa Loma ranch in Santa Maria, California. In this case, the Casa Loma ranch was split into two parcels, the property of the plaintiff, Ms. Weston, and the property of the defendant, Mr. White. The land owned by the plaintiff was owned for many years by her father. She inherited the property and lived there for many years until she sold it to another. Ms. Weston moved to her father’s adjacent ranch property, described as "Casa Loma". Shortly thereafter, at the request of the court, an expert witness examined the issue of the landslide. The report explained that the slide was most likely caused by the removal of timberlands by Ms. Weston’s father on the hilltop above the landslide. Subsequent to 1950, a massive slide was admitted by Ms. Weston’s neighbors which covered the ditch and one of their fields on their property, so they claimed. When the ditch was discovered several years later, the Plaintiffs were required to repair and replace the pipe. Ms. Weston’s subsequent adjoiners had repaired the pipe, and charged the plaintiffs $10 per day for its use. The Court held in favor of (and ordered) the defendants (plaintiffs in that suit) to cover their legal fees, based upon the "possessory rights" of the defendants succeeding Ms. Weston. The court held "[i]t is undeniably true that a possessor in exclusive, long and continous [sic] possession of land is entitled to costs and attorney’s fees". A later case held that the "superior right of possession is founded both upon the public good and individual rights of the person in possession". Moser v. Soares (1969) 275 Cal.App. 2d 585. Later cases extended the same rule. The rationale behind these holdings is that the main purpose of awarding fees to the party whose possession was disturbed was to encourage the protection of "rights in real property" and discourage their disturbance. See, e.g. TV Development v. Vasarhely (1994) 27 Cal. App. 4th 798 and Valerio v. Kring (1935) 2 Cal. App. 2d 479.
Limitations of the Rule and Criticisms
Despite its enduring popularity, the adage has faced criticism for being too simplistic and potentially misleading. In certain legal contexts, possession alone may not carry sufficient weight to establish ownership or rights over a property or object. The phrase itself can be misused by individuals who assert their rights based solely on physical control, without regard to the relevant legal framework. In addition, the principle can be seen as endorsing or encouraging entrenched and systemic inequalities, by providing a basis for justifying claims of ownership by the powerful or privileged, rather than the most just claims. Furthermore, within the field of real property law , the rights conferred by possession may be limited to circumstances where the possessor has met additional criteria, such as overcoming the doctrine of adverse possession by maintaining the property for a statutory period and in an exclusive manner. Even then, adverse possession is often granted reluctantly by the law, and under strict conditions, especially in the context of land ownership. "Possession is 9/10s of the Law" continues to be a subject of both legal and social debate, particularly in areas like land tenure, where the principle may be used to justify dispossession of indigenous peoples and the unjust appropriation of natural resources. The phrase remains popular, even as its simplicity and overextension are questioned.
Cases and Examples
Case studies and examples of cases where possession played a key role in the legal outcome will highlight the importance of understanding the concept within the context of both civil and criminal law.
Water Authority of Great Britain and Northern Ireland v Maughan [1991] 1 All ER
A challenge to the successful prosecution for the offence of abstraction of water without an appropriate authorisation was supported by the fact that there was no evidence as to the geographical location for the alleged offence. The possible offence had allegedly taken place at one of three boreholes across the region but the prosecution could not prove in which water authority’s area – if any – the alleged offence had taken place. Once the court realised that the water was unsupplied and that it must therefore have belonged to one of the three water authorities, it showed "considerable sympathy" with the proposition that the charge should have been brought under the legislation covering the unlawful taking of unsupplied water, as opposed to that which governed abstraction of supplied water. The judge said that on the facts of that case, it was possible the offence had been committed in the water authority’s district but that the level of suspicion was too high for him to conclude "beyond reasonable doubt" that it had.
Clyde Marine Ltd v City Of Glasgow District Council 1994 S.L.T. 818
The actions of a marina management company in keeping its premises secure and safe were of a sufficient standard to displace liability by way of transferring liability to a customer who had failed to keep any valuables safe on the premises.
Bowden v General Accident Fire & Life Assurance Corporation PLC (1993) 27 H.L.R. 265
The insurance claim for lightning damage was denied because the policy had a clause stating that "the [insured] shall take all reasonable precautions to prevent accidents and they shall observe the laws of the land and of any municipal or other authorities and the statutory regulations and byelaws for the time being in force." Penalty clauses of similar nature are upheld in a claim unless they can be shown to be unreasonable.
R v Edwards (2000) 20 R.V.R. 8
The 21 year old son of a wealthy businessman stole money from his father and tried to hide the cash by burying it in the ground. In this case the house was deemed the property of the son because of the obvious possession of his father’s ill conceived cash. The Court of Appeal concluded that the benefit acquired by the father did not give rise to any rights which the law would recognise.
Westminster City Council v Dodgy Mike Ltd [2014] 1W.L.R. 1939
Whilst Mr Dodgy MD would have benefitted from the quick disposal of the goods, the housebreaker proved to be a poor test case. Although the consumer protection legislation was drafted widely enough to include such products, the Council produced insufficient evidence that Mr Dodgy MD knew, or had any reason to suspect, that the items he bought were stolen or illegally acquired in any way. The conviction was quashed.
Practical Tips Involved When Disputing Possession
Possession may indeed be 9/10s of the law, but don’t make the mistake of thinking that just because something is yours it can’t possibly be taken from you by someone who wants it just as badly as you do.
Generally, the best way to safeguard against a dispute over possession is to have it properly memorialized in writing. This is especially true when dealing with property in dispute involving family members. You certainly cannot hold an heirloom ring without documentation, and you cannot start a renovation project on a property without having the proper deed. In other words, make sure your name appears in places that cannot be easily denied, like on a warranty deed. The easier it is to prove your position, the better it will be for you .
Additionally, if something disappears or is broken, having evidence of its prior condition will protect against a claim that it was your fault. Pictures aren’t necessarily enough, since there’s no guarantee that you had it first. Document copies of contracts, insurance policies, stock certificates, and deeds. Read the fine print, so you know what positions are at hand. If you have something of value, consider getting it appraised to accurately determine its worth.
If you’re going into a dispute with another party, be prepared to prove your case. In most cases, you should be able to establish not just that you were in possession of something, but also that you were entitled to it. If the other party seems intent on possession at any cost, you may want to avoid possessory actions, and instead focus on ownership actions. Hire an attorney to help you protect your interests.