Possession in Scots law occurs when an individual physically holds property with the intent to use it.Stair I, 1, 17. Viscount Stair is an institutional writer and authoritative source of law in Scots law. Possession is traditionally viewed as a state of fact, rather than real right (or right in rem / property right) and is not the same concept as ownership in Scots law. It is now said that certain possessors may additionally have the separate real right of ius possidendi (the right to possess).Stair Memorial Encyclopaedia, Vol 18, Property, Ch 4, Possession, para 127. Like much of Scots property law, the principles of the law of possession mainly derive from Roman law.
In possession, the custodian of the property (both heritable and moveable property are capable of possession) is termed a possessor and described as being in possession of the property if he/she detains the property with the necessary mental intention.Stair I, 1, 17. Viscount Stair is an institutional writer and authoritative source of law in Scots law. Even if regarded as a real right, possession is distinct from the right of ownership, and without the real right of ownership, or other possessory real right, a possessor's legal rights to the property are limited. However, the possessor has one important legal right, the right not to be unlawfully dispossessed, and its remedy, the action of spuilzie (pronounced 'spooley'), is still enforceable in modern times. The remedies within an action of spuilzie include restitution (return) of the property and compensation. Possession is relevant to many areas of Scots law.
Possession and ownership 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). 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."The Roman jurist Ulpian also wrote that "possession and ownership have nothing in common".Nicholas, Barry. (1962). An introduction to Roman law. Oxford: Clarendon Press. p. 107. . OCLC 877760. 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.
Reform 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.Land Registration (Scotland) Act 2012 s.86 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."Scottish Law Commission News Release on Report on Prescription and Title to Moveable Property. Available:
https://www.scotlawcom.gov.uk/files/7913/3648/2203/nr_rep228.pdf; https://www.scotlawcom.gov.uk/publications/reports/2010-present/ .As of 2020, the recommendations of this Report have not been implemented into legislation by the Scottish Parliament.
Acquisition of possession There are two requirements for acquisition of possession:
(1) Act of the body (corpus possessionis) The first requirement of possession is an act of body, or corpus, in which the possessor physically detains the property. 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,Draft Common Frame Reference Book VIII - 1:205(3) 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,Draft Common Frame Reference Book VIII - 1:205(2) eg: Susan buys a vase and collects it from the shop, Susan has natural possession of the vase.
(2) Act of the mind (animus possidendi) 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).Stair Institutions II,1,17 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).Erskine Institute II,1,20 and in Bell Principles s 1311 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.Stair, Memorial Encyclopaedia, vol 18, Property, Ch 4, Possession, para 125. Other jurisdictions such as English law allows any holder of property to be considered possessor except employees and temporary holders. 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.Stair, Memorial Encyclopaedia, vol 18, Property, Ch 4, Possession, para 125. Following Chief Constable of Strathclyde Police v Sharp,2002 SLT (Sh Ct) 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.
Presumption of possession 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. In other jurisdictions, these presumptions are characterised by the phrase 'possession is nine-tenths of the law'.
Forms of possession Due to the rules for the acquisition of possession, it follows that there are three main forms of possession:
(1) Natural 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.
(2) Civil possession 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.
(3) Possession animo solo 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.
Lawful and unlawful possession 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. Possessors who acquire possession unlawfully, such as by theft, are termed unlawful possessors.Gretton, George Lidderdale,. Property, trusts and succession. Steven, Andrew J. M., (Second edition ed.). Haywards Heath, West Sussex. p. 158. . OCLC 841186342. 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.J. Townsend, 'Raising Lazarus: Why Spuilzie Should Be Resurrected' (2011)2 Aberdeen Student L. Rev. 22, 32.
Voluntary transfers of possession (delivery) 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.
Actual delivery Actual delivery is the physical transfer of property from the possessor personally to a new possessor.
Constructive delivery 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:
(1) Delivery by a natural possessor 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.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.