Land Title versus Possession

The act of physical control—as a crucial element of legal possession—is afforded special priority by the common law. In the case of “unowned” things, showing physical control (plus an intention to control) amounts not only to legal possession for a period of time but also to absolute ownership—at least, if the animal can no longer “escape”. Exactly how one can show sufficient physical control is, as we saw, often difficult to define and heavily dependent on the circumstances.

Now we turn our attention to possession of land. Locke’s theory of first possession through labour applies equally to personal and real property (i.e., to “things” and “land”). There are important consequences of this and other ideas in Locke, especially as they relate to Indigenous land rights. This week, our focus will be on the relationship between possession and title—two related but distinct common law concepts. The title holder is often referred to as the “true” or “absolute” owner of the land, and they continue to hold title even when someone else is in possession of the land (with or without the owner’s permission). At the same time, someone in possession of land may enjoy certain property rights that are enforceable against other non-possessors. From the perspective of classical liberalism, possession arises from the dynamics of free competition between individuals, while title is a means to limit and stabilize that competition by granting possession the imprimatur of the state.