associated with adverse possession. While the doctrine operates when an
unauthorized occupier acquires actual possession of a land or a property, could it
be that the notion of constructive possession becomes weak, even though it is an
important defense for the true owner in a claim against the occupier? While the
discussion on constructive possession has led to the understanding that: (a) it is
primarily a mental element loosely connected to de facto possession; and (b) an
immaterial yet strong connection between the owner and the property—“constructive possession” in an “adverse possession” context gradually surfaces as unsubstantial and more illusory from the very minute the true owner is separated from
actual possession.
66 If possession is the root of title, then “actual possession” is the
ground in which the root is implanted.
Similar to “possession” and its various intrinsic components that determine the
true owner in property law; judges in decisions concerning abandoned wrecks,
salvage and the law of finds have also dealt with possession, both actual and
constructive, quite extensively. Although salvage law does not correspond to title,
ownership or possession and broadly deals with salvor’s compensatory rights, the
law of finds answers questions related to ownership and possession and tries to vest
title in the most appropriate natural person who reduces abandoned maritime
property to his possession. Again, possession is an important concept when it
comes to control and management of a ship, and accountability. Whether it is an
individual owner, or joint owners who share a unity of title, or co-owners “in whom
is vested severally distinct shares in the ship, but with an undivided interest in the
whole”
67
—constructive possession always follows the ship i.e., the res and is a
decisive factor in rights in rem. That is why Edgar Gold et al. rightly point out:
. . . In maritime Law the rights and duties of actual owners are frequently extended to a larger
range of persons who may have chartered, or have management, operation, or control of the
have conformed to a list of explosive adjectives. In order to ripen into title, we are told, the
possession must be open, notorious, continuous, hostile, and adverse. To the uninitiated this must
sound more like grounds for divorce than property law. Sometimes it is added that it also must be
under claim of right, claim of title and color of title [emphasis added].”
66 Ibid., p. 60. The author stresses the distinguishing characteristics of actual and constructive
possession and deems constructive possession to be quite convoluted: “The word “actual” means
real, rather than potential; and it’s clear we would be in quite a situation if potential adverse
possession for, say, twenty-one years gave a title. So, on that basis, the requirement that the
possession must be actual means only that the possession must be real possession. If the statement
is taken to mean that the possession must be actual as opposed to constructive then we are in two
difficulties. In the first place, it seems to me that analysis of the phrase “constructive possession”
will bring you to the conclusion that it means either no possession or just plain possession. If it
means “no possession” then the principal proposition reads, “the possession must be possession
and not no possession.” If “constructive possession” means “possession” then we have the
proposition “the possession must be possession and not possession.” That was all “in the first
place” and probably is confusing if not fallacious. In the second place, if I’m wrong, and
constructive possession means something which is neither ordinary possession nor no possession,
then the proposition that adverse possession, to be effective to create a title, must be ordinary
possession, and not constructive, is simply not true [emphasis added].”
67 Hill (2003).
354
T. M. Johansson
unauthorized occupier acquires actual possession of a land or a property, could it
be that the notion of constructive possession becomes weak, even though it is an
important defense for the true owner in a claim against the occupier? While the
discussion on constructive possession has led to the understanding that: (a) it is
primarily a mental element loosely connected to de facto possession; and (b) an
immaterial yet strong connection between the owner and the property—“constructive possession” in an “adverse possession” context gradually surfaces as unsubstantial and more illusory from the very minute the true owner is separated from
actual possession.
66 If possession is the root of title, then “actual possession” is the
ground in which the root is implanted.
Similar to “possession” and its various intrinsic components that determine the
true owner in property law; judges in decisions concerning abandoned wrecks,
salvage and the law of finds have also dealt with possession, both actual and
constructive, quite extensively. Although salvage law does not correspond to title,
ownership or possession and broadly deals with salvor’s compensatory rights, the
law of finds answers questions related to ownership and possession and tries to vest
title in the most appropriate natural person who reduces abandoned maritime
property to his possession. Again, possession is an important concept when it
comes to control and management of a ship, and accountability. Whether it is an
individual owner, or joint owners who share a unity of title, or co-owners “in whom
is vested severally distinct shares in the ship, but with an undivided interest in the
whole”
67
—constructive possession always follows the ship i.e., the res and is a
decisive factor in rights in rem. That is why Edgar Gold et al. rightly point out:
. . . In maritime Law the rights and duties of actual owners are frequently extended to a larger
range of persons who may have chartered, or have management, operation, or control of the
have conformed to a list of explosive adjectives. In order to ripen into title, we are told, the
possession must be open, notorious, continuous, hostile, and adverse. To the uninitiated this must
sound more like grounds for divorce than property law. Sometimes it is added that it also must be
under claim of right, claim of title and color of title [emphasis added].”
66 Ibid., p. 60. The author stresses the distinguishing characteristics of actual and constructive
possession and deems constructive possession to be quite convoluted: “The word “actual” means
real, rather than potential; and it’s clear we would be in quite a situation if potential adverse
possession for, say, twenty-one years gave a title. So, on that basis, the requirement that the
possession must be actual means only that the possession must be real possession. If the statement
is taken to mean that the possession must be actual as opposed to constructive then we are in two
difficulties. In the first place, it seems to me that analysis of the phrase “constructive possession”
will bring you to the conclusion that it means either no possession or just plain possession. If it
means “no possession” then the principal proposition reads, “the possession must be possession
and not no possession.” If “constructive possession” means “possession” then we have the
proposition “the possession must be possession and not possession.” That was all “in the first
place” and probably is confusing if not fallacious. In the second place, if I’m wrong, and
constructive possession means something which is neither ordinary possession nor no possession,
then the proposition that adverse possession, to be effective to create a title, must be ordinary
possession, and not constructive, is simply not true [emphasis added].”
67 Hill (2003).
354
T. M. Johansson