Constructive possession

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Constructive possession [1] is a legal fiction to describe a situation in which 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 someone with actual possession.

For example, if one's car sits in one's driveway, one has physical possession. 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 criminal law, regarding theft and embezzlement, and civil law, regarding possession of land and chattels. For example, if someone steals your credit card number, the credit card never leaves your actual possession, but the person who has stolen the number has constructive possession and could most likely be charged with theft of your credit card information.

Constructive possession is also essential in the seizure of goods by private or government authorities. Take, for example, a large piece of equipment. Should money be lent against the value of the equipment, and the loan goes into default, the creditor may find it difficult to remove the equipment promptly. However, by notice to the borrower, it may 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.

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, they have taken possession of it even though they have not moved it.

Constructive possession can also refer to items inside of a vehicle. The owner and driver of the vehicle can be in constructive possession of all things inside their car. If a minor were driving their vehicle with passengers possessing 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.

In regards to determining if a firearm is loaded, some states with strict gun control laws apply the concept of constructive possession in establishing that one has a loaded firearm if the individual has both the firearm and its ammunition in their possession or readily accessible, regardless of whether or not a live round is in the firing chamber or a magazine with live ammunition has been inserted into the firearm. In this context, the firearm would be considered "legally loaded" by law, even though it may not be physically loaded.

Related Research Articles

In law, possession is the control a person intentionally exercises toward a thing. Like ownership, the possession of anything is commonly regulated by country under property law. In all cases, to possess something, a person must have an intention to possess it. A person may be in possession of some property.

Personal property is property that is movable. In common law systems, personal property may also be called chattels or personalty. In civil law systems, personal property is often called movable property or movables—any property that can be moved from one location to another.

<span class="mw-page-title-main">Theft</span> Act of taking anothers property without consent

Theft is the act of taking another person's property or services without that person's permission or consent with the intent to deprive the rightful owner of it. The word theft is also used as a synonym or informal shorthand term for some crimes against property, such as larceny, robbery, embezzlement, extortion, blackmail, or receiving stolen property. In some jurisdictions, theft is considered to be synonymous with larceny, while in others, theft is defined more narrowly. Someone who carries out an act of theft may be described as a "thief".

Larceny is a crime involving the unlawful taking or theft of the personal property of another person or business. It was an offence under the common law of England and became an offence in jurisdictions which incorporated the common law of England into their own law, where in many cases it remains in force.

Trespass is an area of tort law broadly divided into three groups: trespass to the person, trespass to chattels, and trespass to land.

Bailment is a legal relationship in common law, where the owner transfers physical possession of personal property ("chattel") for a time, but retains ownership. The owner who surrenders custody to a property is called the "bailor" and the individual who accepts the property is called a "bailee". The bailee is the person who possesses the personal property in trust for the owner for a set time and for a precise reason and who delivers the property back to the owner when they have accomplished the purpose that was initially intended.

Criminal conversion is a crime, limited to parts of common law systems outside England and Wales, of exerting unauthorized use or control of someone else's property, at a minimum personal property, but in some jurisdictions also applying to types of real property, such as land or to patents, design rights and trademarks. It differs from theft in that it does not include the element of intending to deprive the owner of permanent possession of that property. As such, it is a lesser offense than the crime of theft. Criminal conversion specifies a type of conversion in that it involves criminal law, not civil law.

<span class="mw-page-title-main">Lease</span> Contractual agreement in which an assets owner lets someone else use it in exchange for payment

A lease is a contractual arrangement calling for the user to pay the owner for the use of an asset. Property, buildings and vehicles are common assets that are leased. Industrial or business equipment are also leased. Basically a lease agreement is a contract between two parties: the lessor and the lessee. The lessor is the legal owner of the asset, while the lessee obtains the right to use the asset in return for regular rental payments. The lessee also agrees to abide by various conditions regarding their use of the property or equipment. For example, a person leasing a car may agree to the condition that the car will only be used for personal use.

A deadly weapon, sometimes dangerous weapon or lethal weapon, is an item that can inflict mortal or great bodily harm. By statutory definition, certain items, especially firearms, are designated "deadly weapons per se", meaning they are regarded as deadly weapons no matter how they are used, from the Latin for "by itself". In addition, deadly weapons statutes often contain provisions covering other implements intended to be used to inflict harm.

A bill of sale is a document that transfers ownership of goods from one person to another. It is used in situations where the former owner transfers possession of the goods to a new owner. Bills of sale may be used in a wide variety of transactions: to sell goods, exchange, give, or mortgage objects. They can be used only to transfer ownership of goods that people already own or to transfer ownership of moveable tangible goods and only by individuals and unincorporated businesses.

Replevin or claim and delivery is a legal remedy, which enables a person to recover personal property taken wrongfully or unlawfully, and to obtain compensation for resulting losses.

A rental agreement is a contract of rental, usually written, between the owner of a property and a renter who desires to have temporary possession of the property; it is distinguished from a lease, which is more typically for a fixed term. As a minimum, the agreement identifies the parties, the property, the term of the rental, and the amount of rent for the term. The owner of the property may be referred to as the lessor and the renter as the lessee.

<span class="mw-page-title-main">Open carry in the United States</span> Practice of carrying a visible firearm in some US states

In the United States, open carry refers to the practice of visibly carrying a firearm in public places, as distinguished from concealed carry, where firearms cannot be seen by the casual observer. To "carry" in this context indicates that the firearm is kept readily accessible on the person, within a holster or attached to a sling. Carrying a firearm directly in the hands, particularly in a firing position or combat stance, is known as "brandishing" and may constitute a serious crime, but is not the mode of "carrying" discussed in this article.

Although the general English usage of the adjective constructive is "helping to develop or improve something; helpful to someone, instead of upsetting and negative," as in the phrase "constructive criticism," in legal writing constructive has a different meaning.

Conversion is an intentional tort consisting of "taking with the intent of exercising over the chattel an ownership inconsistent with the real owner's right of possession". In England and Wales, it is a tort of strict liability. Its equivalents in criminal law include larceny or theft and criminal conversion. In those jurisdictions that recognise it, criminal conversion is a lesser crime than theft/larceny.

<span class="mw-page-title-main">Gun laws in Arizona</span> Arizonas gun law

Firearm laws in Arizona regulate the sale, possession, and use of firearms and ammunition in the state of Arizona in the United States.

<span class="mw-page-title-main">Gun laws in Indiana</span> Indianas gun law

Gun laws in Indiana regulate the sale, possession, and use of firearms and ammunition in the U.S. state of Indiana. Laws and regulations are subject to change.

<span class="mw-page-title-main">Gun laws in New Mexico</span> New Mexicos gun law

Gun laws in New Mexico regulate the sale, possession, and use of firearms and ammunition in the state of New Mexico in the United States.

<span class="mw-page-title-main">Gun laws in Ohio</span> Ohios gun law

Gun laws in Ohio regulate the sale, possession, and use of firearms and ammunition in the U.S. state of Ohio.

<span class="mw-page-title-main">Gun laws in Pennsylvania</span> Pennsylvanias gun law

Gun laws in Pennsylvania regulate the sale, possession, and use of firearms and ammunition in the Commonwealth of Pennsylvania in the United States.

References

  1. "Constructive Possession". Cornell Law. Archived from the original on 2012-03-16.