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“Legal possession” is a term used by the landlord-tenant bar. We recently came upon a settlement agreement which required the tenant to deliver “broom-clean legal possession” to the landlord on or before a date certain. In another situation, a good guy guaranty limited liability to obligations which accrue prior to the date the tenant delivers “legal possession” to the landlord. What exactly is meant by “legal possession?”

Let’s Start With ‘Possession’

Possession of real property is a matter of physical fact. Having the right or legal entitlement to possession, is not possession. Possession is a physical concept, not a right. As stated in Black’s Law Dictionary, possession is “the fact of having or holding property in one’s power.” That power means having physical dominion and control over the property. That dominion and control may be exercised by excluding others, or letting others in. It is the fact of that physical control that is possession. That power might be exercised legitimately, or it might be exercised wrongfully. It might be exercised in a manner that is a violation of law. But either way, it is the physical fact, the fact of having or holding the property in one’s power and control, that constitutes possession.

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