constructive possession (possession in law) – control or dominion over a property without actual possession or custody of it, or possession of an entire property by virtue of occupying a portion of it

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constructive possession:

1. Control or dominion over a property without actual possession or custody of it. — aka effective possession.

2. Civil law. Possession by operation of law of an entirety by virtue of corporeal possession of a part.  When a possessor holds title to a property and physically possesses part of it, the law will deem the possessor to hold constructive possession of the rest of the property described in the title. — aka possessio fictitia; possession in law. [1]

1. That possession which the law annexes to the title; sometimes called legal possession, or possession in law, to distinguish it from possession in deed or in fact, which actual occupancy gives. 42 Am J1st Prop § 42.

As applied to a disseisor: — a claim of ownership under color of title to a tract of land of which only a part is in the actual possession of the claimant. 3 Am J2d Adv P § 18.

By force of statute, payment of taxes, under color of title, is constructive possession of unimproved and uninclosed land.  Such possession is constructive adverse possession as distinguished from actual adverse possession. Canaday v Miller, 102 Kan 577, 171 P 651. [2]

1. As opposed to actual possession, possession that the law infers from the circumstances; possession in law as opposed to possession in fact.  EXAMPLE: a person claiming a tract of land under color of right or color of title, who is in actual possession of a portion of it, is in constructive possession of the entire tract. [3]

possession in law:

1. Possession that is recognized by the law either because it is a specific type of possession in fact or because the law for some special reason attributes the advantages and results of possession to someone who does not in fact possess. 

2. See constructive possession[1]

1. A constructive possession as distinguished from possession in deed, or in fact, by way of actual occupancy; that possession which the law annexes to title. [2]

1. Constructive possession. [3]

      Excerpt from John Salmond, Jurisprudence 287 (Glanville L. Williams ed. 10th ed. 1947):

     “There is no conception which will include all that amounts to possession in law, and will include nothing else, and it is impossible to frame any definition from which the concrete law of possession can be logically deduced.” [4]

possessio civilis [Latin] (17c.) Roman law. Legal possession; that is, possession accompanied by an intent to hold it as one’s own. — aka possession in lawSee possessory interdict under INTERDICT (1); USUCAPIO; possession in law[1]

1. (Roman law.)  Civil possession, — a possession under a claim of ownership; a possession which anticipated the acquisition of ownership by prescription.  See Mackeldey’s Roman Law §§ 241, 285. [2]

Related Terms:

constructive adverse possession – a type of adverse possession in which the claim arises from the claimant’s payment of taxes under color of right rather than by actual possession of the land.


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[1]: Black’s Law Dictionary Deluxe Tenth Edition by Henry Campbell Black, Editor in Chief Bryan A. Garner. ISBN: 978-0-314-61300-4

[2]: Ballantine’s Law Dictionary with Pronunciations Third Edition by James A. Ballantine (James Arthur 1871-1949).  Edited by William S. Anderson.  © 1969 by THE LAWYER’S CO-OPERATIVE PUBLISHING COMPANY.  Library of Congress Catalog Card No. 68-30931

[3]:  Ballantine’s Law Dictionary Legal Assistant Edition
by Jack Ballantine 
(James Arthur 1871-1949).  Doctored by Jack G. Handler, J.D. © 1994 Delmar by Thomson Learning.  ISBN 0-8273-4874-6.


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