How do the concepts of possession, ownership and title impact property rights in Australia?

Date: Sep 04, 2013
Document Type: Newsletter

The practice of law is complex and matters can turn on the meaning of a sentence, or even a word. For instance, when looking at ‘possession’ and ‘ownership’ in relation to property, the majority of people will assume that both terms mean essentially the same thing, and in everyday usage, yes, that would be the case. However, when looking at possession, ownership and title to property via a legal prism, there are some distinctions between possession, ownership, and title.

What is ‘ownership’ in property law?

Possession and ownership can be seen as two sides of the same coin, and that assumption is both correct…and kind of incorrect.

Arguably, the biggest distinction between possession and ownership is that of permanence – which has more of an association with ownership. Additionally, a person can have possession of something but not necessarily ownership. For example, if you borrow a pen from someone you have possession of the pen, but not ownership, because in this example, possession is temporary, therefore, ownership cannot be claimed. However, the most important part of the example is that the owner has the better right to possession.

Although there may be slight differences between the concept of possession and ownership, the law generally treats both in a similar manner. Turning back to our pen example, if someone interferes with the possession of the pen by wrongly and directly interfering with the person’s right to possession, the owner can recover possession because they have a better right to the property – even where ownership is absent.

Our pen analogy can be extended to renting property. Sure, the tenant has possession, while the owner temporarily gives up their ownership rights. However, the owner still possesses residual rights and can bring a lease to an end provided the legal requirements have been adhered to.

Title and property

Title is generally affixed to property that has greater value, such as a vehicle or land. Much like ownership, ‘title’ can also signify ‘possession’, therefore, it’s often used interchangeably. Additionally, ‘title’ similar to ‘ownership’ can mean more than ‘possession’.

The registering of property under the Torrens system is arguably the most pertinent example of legal title which generally speaking, is more than mere evidence of ownership. In fact, it is in many ways the lynchpin of property rights under Australian law.

Finally, title can also be in reference to possessory title, such as when a person takes and possesses an object.

Concluding remarks

Making a distinction between possession, ownership and title may seem like a finicky exercise, and although the differences may be minor in many respects, the concepts may have an impact on claims to property rights.

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