Also known as: rights to possess · right of possession · possessory right
Written by attorneys · grounded in primary & secondary sources — see below
A core incident of property ownership consisting of the legal entitlement to control and occupy property to the exclusion of others. This right forms part of the bundle of rights inhering in ownership and determines superior claims in disputes over land or chattels.
Riverstone Manufacturing holds a mortgage on a commercial building owned by Redwood Bank. Without consent, Redwood Bank diverts rental payments from tenants into its own accounts instead of applying them to maintenance or taxes. The mortgagee asserts its right to possess those rents under the mortgage terms, triggering a claim for waste.
Raphael Rivera, a warehouse supervisor, lawfully receives electronics shipments for his employer. He later diverts several crates to a private buyer while still holding authority over the cargo. The employer claims the initial lawful possession distinguishes the conduct from a trespassory taking.
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Penn Central Transportation Co. owns Grand Central Terminal. City regulations prevent alteration of the building's exterior, restricting the owner's ability to develop air rights above the structure. The owner asserts that the restrictions impair its right to possess and use the property as it chooses.
Loretto owns an apartment building. A cable company installs equipment on the roof and exterior walls under a city ordinance without the owner's consent. The owner claims the permanent physical occupation destroys the right to possess and exclude others from that portion of the property.
Roberto Reyes owns commercial property targeted for redevelopment. The city initiates eminent domain proceedings claiming a public purpose. Reyes asserts that the taking would improperly divest his right to possess the land without adequate justification under state constitutional standards.
Ronald Reed's father executes a document transferring title to a valuable painting while reserving a life estate. The father retains physical possession until death. Upon the father's passing, Ronald Reed claims the right to possess the painting as the remainder interest holder against the stepmother's refusal to surrender it.
The right to possess establishes lawful control that permits conversion without an initial trespass, distinguishing embezzlement from larceny. A person holding this right may misappropriate property while still in lawful possession.
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Force may be justified when the actor reasonably believes immediate reentry is necessary after unlawful dispossession and the opposing party lacks a superior claim of right. For land, exceptional hardship from delay must also be shown under the Model Penal Code approach.
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Yes. Permanent occupation by another eliminates the owner's power to possess the occupied space and to exclude the occupier, destroying that strand of the property rights bundle.
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The mortgagee holds a right to possess rents generated by the property. When the mortgagor retains those rents without consent, the retention constitutes waste impairing the mortgagee's security interest.
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…by law. [Instead, it] . . . denote[s] the group of rights inhering in the citizen’s relation to the physical thing, as the right to possess, use and dispose of it. . . . The constitutional provision is addressed to every sort of interest the citizen may possess.” Id. , at 377-378 (emphasis added). While neighboring…