Constructive possession
Encyclopedia
Constructive possession is a legal fiction
to describe a situation where an individual has actual control over chattels or real property
without actually having physical control of the same assets. At law, a person with constructive possession stands in the same legal position as a person with actual possession.
For example, if one's car is sitting in one's driveway, one has physical possession of the car. However, any person with the key has constructive possession, as they may take physical possession at any time without further consent
from one.
Constructive possession is an important concept in both the criminal law
regarding theft
and embezzlement
, and the civil law
regarding possession of land and chattels. For example, if someone steals your credit card number, the actual credit card never leaves your actual possession, but the person who has stolen the number does have constructive possession, and could most likely be charged with theft of your credit card information.
Constructive possession is also an important concept in cases of seizure
of goods by private or government authorities. Take, for example, a large piece of equipment. Should money be loaned against the value of the equipment, and the loan goes into default, the creditor
may find it difficult to actually remove the equipment in a timely manner. However, it may by notice to the borrower take constructive possession, which effectively prevents the borrower from further using the equipment pending its removal. Similarly, when a landlord exercises a contractual remedy of distraint
of goods for unpaid rent
, the landlord need not remove the goods from the premises, but may take constructive possession of the goods through a simple declaration. At that point, if the tenant attempted to remove them, the tenant would be guilty of theft.
However, a person who makes it impossible to take possession of another's property has taken actual possession, not constructive possession. For example, if someone chains someone else's car to an immovable object, he or she has taken possession of it even though he or she has not moved it.
Constructive possession can also refer to items inside of a vehicle. It is possible for the owner and driver of the vehicle to be in constructive possession of all items inside their car. If a minor were to be driving their car with passengers who have possession of alcohol or any illegal substance, the driver may be cited for constructive possession
A person can be charged with constructive possession of an illegal device if they possess the otherwise legal material to assemble it. If a person has in his possession or control the ingredients to make an explosive device, he can be charged with constructive possession of that device.
Legal fiction
A legal fiction is a fact assumed or created by courts which is then used in order to apply a legal rule which was not necessarily designed to be used in that way...
to describe a situation where an individual has actual control over chattels or real property
Real property
In English Common Law, real property, real estate, realty, or immovable property is any subset of land that has been legally defined and the improvements to it made by human efforts: any buildings, machinery, wells, dams, ponds, mines, canals, roads, various property rights, and so forth...
without actually having physical control of the same assets. At law, a person with constructive possession stands in the same legal position as a person with actual possession.
For example, if one's car is sitting in one's driveway, one has physical possession of the car. However, any person with the key has constructive possession, as they may take physical possession at any time without further consent
Consent
Consent refers to the provision of approval or agreement, particularly and especially after thoughtful consideration.- Types of consent :*Implied consent is a controversial form of consent which is not expressly granted by a person, but rather inferred from a person's actions and the facts and...
from one.
Constructive possession is an important concept in both the criminal law
Criminal law
Criminal law, is the body of law that relates to crime. It might be defined as the body of rules that defines conduct that is not allowed because it is held to threaten, harm or endanger the safety and welfare of people, and that sets out the punishment to be imposed on people who do not obey...
regarding theft
Theft
In common usage, theft is the illegal taking of another person's property without that person's permission or consent. The word is also used as an informal shorthand term for some crimes against property, such as burglary, embezzlement, larceny, looting, robbery, shoplifting and fraud...
and embezzlement
Embezzlement
Embezzlement is the act of dishonestly appropriating or secreting assets by one or more individuals to whom such assets have been entrusted....
, and the civil law
Civil law (common law)
Civil law, as opposed to criminal law, is the branch of law dealing with disputes between individuals or organizations, in which compensation may be awarded to the victim...
regarding possession of land and chattels. For example, if someone steals your credit card number, the actual credit card never leaves your actual possession, but the person who has stolen the number does have constructive possession, and could most likely be charged with theft of your credit card information.
Constructive possession is also an important concept in cases of seizure
Seizure
An epileptic seizure, occasionally referred to as a fit, is defined as a transient symptom of "abnormal excessive or synchronous neuronal activity in the brain". The outward effect can be as dramatic as a wild thrashing movement or as mild as a brief loss of awareness...
of goods by private or government authorities. Take, for example, a large piece of equipment. Should money be loaned against the value of the equipment, and the loan goes into default, the creditor
Creditor
A creditor is a party that has a claim to the services of a second party. It is a person or institution to whom money is owed. The first party, in general, has provided some property or service to the second party under the assumption that the second party will return an equivalent property or...
may find it difficult to actually remove the equipment in a timely manner. However, it may by notice to the borrower take constructive possession, which effectively prevents the borrower from further using the equipment pending its removal. Similarly, when a landlord exercises a contractual remedy of distraint
Distraint
Distraint or distress is "the seizure of someone’s property in order to obtain payment of rent or other money owed", especially in common law countries...
of goods for unpaid rent
Renting
Renting is an agreement where a payment is made for the temporary use of a good, service or property owned by another. A gross lease is when the tenant pays a flat rental amount and the landlord pays for all property charges regularly incurred by the ownership from landowners...
, the landlord need not remove the goods from the premises, but may take constructive possession of the goods through a simple declaration. At that point, if the tenant attempted to remove them, the tenant would be guilty of theft.
However, a person who makes it impossible to take possession of another's property has taken actual possession, not constructive possession. For example, if someone chains someone else's car to an immovable object, he or she has taken possession of it even though he or she has not moved it.
Constructive possession can also refer to items inside of a vehicle. It is possible for the owner and driver of the vehicle to be in constructive possession of all items inside their car. If a minor were to be driving their car with passengers who have possession of alcohol or any illegal substance, the driver may be cited for constructive possession
A person can be charged with constructive possession of an illegal device if they possess the otherwise legal material to assemble it. If a person has in his possession or control the ingredients to make an explosive device, he can be charged with constructive possession of that device.