Possession

Question 1

What is the definition of possession? How is it exercised (give example)?

Answer 1

Possession is the holding of a thing or the enjoyment of a right. It may be exercised in one’s own name or in that of another.

Example:

One’s own name - Principal owns the land.
In that of another - Agent may possess the land, but not on his own name but in that of his principal.

Question 2

What are 4 the degrees of possession? Give examples each.

Answer 2

(a) Mere holding or having, without any right whatsoever.

Example: Thief possessing the ring.

(b) Possession with a juridical title, but not that of an owner.

Example: A lessee possessing an apartment.

(c) Possession with just title, but not from the true owner.

Example: Karl delivers a car to Nina, who buys it in good faith. Karl is merely pretending to be an owner.

(d) Possession with a title of dominium, that is, with a just title from the owner.

Question 3

What are the three (3) requisites or elements of possession?

Answer 3

(a) There must be a holding or control of a thing or right
(b) There must be a deliberate intention to possess
(c) The possession must be by virtue of one’s own right

Question 4

What are the concepts of possession? Give examples.

Answer 4

The possession of things or rights may be had in one of two concepts: either in the concept of an owner, or in that of the holder of the thing or right to keep or enjoy it, the ownership pertaining to another person.

Concept of an owner: A possessor who claims to be and acts as if he is the owner of the property.

Concept of a holder: A possessor who recognizes another person to be the owner of the property he is holding.

Question 5

When is a possessor deemed in good faith? How about bad faith?

Answer 5

He is deemed a possessor in good faith who is not aware that there exists in his title or mode of acquisition any flaw which invalidates it.

He is deemed a possessor in bad faith who possesses in any case contrary to the foregoing.

Question 6

When is possession in good faith distinguished?

Answer 6

Possession acquired in good faith does not lose this character except in the case from the moment facts exists which show that the possessor is not unaware that he possesses the thing improperly or wrongfully.

Question 7

What are the 4 ways when possession acquired?

Answer 7

Possession is acquired by the material occupation of a thing or the exercise of a right, or by the fact that it is subject to the action of our will, or by the proper acts and legal formalities established for acquiring such right.

Question 8

Who may acquire possession?

Answer 8

Possession may be acquired by the same person who is to enjoy it, by his legal representative, or by his agent, or by any person without power whatsoever, but in the last case, the possession shall not be considered as acquired until the person in whose name the act of possession was executed the same.

Question 9

When is possession of a hereditary property deemed transmitted?

Answer 9

The possession of hereditary property is deemed transmitted to the heir without interruption and from the moment of death of the decedent, in case the inheritance is accepted. One who validly renounces an inheritance is deemed never to have possessed the same.

Question 10

Can a possessor who succeeds the property by hereditary bear the consequences of the wrongful possession of the decedent?

Answer 10

One who succeeds by hereditary title shall not suffer the consequences of the wrongful possession of the decedent, if it is not shown that he has aware of the flaws affecting it, but the effects of possession in good faith shall not benefit him except from the date of death of the decedent.

Question 11

Can a minor and incapacitated person acquire possession of things?

Answer 11

Minors and incapacitated person may acquire the possession of things; but they need the assistance of their legal representatives in order to exercise the rights which from the possession arise in their favor.

Question 12

What are instances that do not constituted possession? Give example each.

Answer 12

Possession cannot be acquired through:
(a) Force or administration, as long as there is a possessor who objects thereto.
(b) Acts merely tolerated
(c) Acts executed clandestinely and without the knowledge of the possessor of the thing
(d) By violence

Examples:
(a) Robbery
(b) Owner of the thing tolerated the other party to live in the property. The other party do not acquire any right to possess the property.
(c) Secret possession or possession by stealth.
(d) Entering the premises and excluding the lawful possessor therefrom

Question 13

Can two persons be recognized as a possessor at the same time?

Answer 13

Possession as a fact cannot be recognized at the same time in two different personalities except in the case of co-possession.

Should a question arise regarding the fact of possession, the present possessor shall be preferred.

If there are two possessors, the one longer in possession.

If the dates of the possession are the same, the one who presents a title.

Question 14

What is the remedy of a possessor deprived of his possessing through forcible entry?

Answer 14

A possessor deprived of his possession through forcible entry may within ten days from the filing of the complaint present a motion to secure from the competent court, in the action for forcible entry, a writ of preliminary mandatory injunction to restore him in his possession.

Question 15

What concept of possession may be an owner by prescription?

Answer 15

Only the possession acquired and enjoyed in the concept of owner can serve as a title for acquiring dominion.

Question 16

Is payment of land taxes and mere tax declaration be a proof of ownership?

Answer 16

Generally, payment of land taxes is not ownership, and a mere tax declaration or a tax easement does not by itself give title.

However, the payment of land taxes is one of the most persuasive and positive indication which shows the will of a person to possess the property in the concept of an owner or with a claim of ownership.

While tax declarations and receipts are not conclusive evidence of ownership, yet, when coupled with proof of actual possession, they are a strong evidence of ownership..

Question 17

In the possession of real property, are movables also included?

Answer 17

The possession of real property presumes that of the movables therein, so long as it is not shown or proved that they should be excluded.

Question 18

With regards to fruits in possession, what is the rule?

Answer 18

A possessor in good faith is entitled to the fruits received before the possession is legally interrupted.

Natural and industrial fruits are considered received from the time they are gathered or severed.

Civil fruits are deemed to accrue daily and belong to the possessor in good faith in that proportion.

Question 19

With regards to the termination of possession in good faith and the acquisition of fruits, what are the rules?

Answer 19

If at the time the good faith ceases, there should be any natural or industrial fruits, the possessor shall have a right to a part of the expenses of cultivation and to a part of the net harvest, both in proportion to the time of the possession.

The owner of the thing may, should he so desires, give the possessor in good faith the right to finish the cultivation and gathering of the growing fruits, as an indemnity for his part of the expenses of cultivation and the net proceeds.

Question 20

What is a necessary expenses?

What are useful expenses?

What are the rules with regards to these expenses?

Answer 20

Necessary expenses are those expenses that are necessary for the preservation of the property. Useful expenses on the other hand, are expenses that adds value to the property.

Necessary expenses shall be refunded to every possessor, but only the possessor in good faith may retain the thing until he has been reimbursed therefor.

Useful expenses shall be refunded only to the possessor in good faith with the same right of retention, the person who has defeated him in the possession having the option of refunding the amount of the expenses or of paying the increase in value which the thing may have acquired by reason thereof.

Question 21

With regards to useful improvements done by a possessor in good faith, what is the rule?

Answer 21

If the useful improvements can be removed without damage to the principal thing, the possessor in good faith may remove them, unless the person who recovers the possession exercises the option of refunding the amount of the expenses or paying the increase in value of the thing.

Question 22

What are the rights of a possessor in bad faith with regards to the fruits and expenses?

Answer 22

The possessor in bad faith shall reimburse the fruits received and those which the legitimate possessor could have received.

He has the right to be reimbursed for the necessary expenses.

The expenses incurred in improvements for pure luxury or mere pleasure shall not be refunded to the possessor in bad faith, but he may remove the objects provided that the thing suffers no injury thereby, and the lawful possessor does not prefer to retain them by paying the value they may have at the time he enters into possession.

Question 23

With regards to the deterioration or loss of the thing possessed, what are the rules for possessors in good faith and bad faith?

Answer 23

A possessor in good faith shall not be liable for the deterioration or loss of the thing possessed, except in cases in which it is proved that he has acted with fraudulent intent or negligence, after the judicial summons.

A possessor in bad faith shall be liable for deterioration or loss in every case, even if caused by a fortuitous event.

Question 24

What are the 4 instances a possessor may lose his possession?

Answer 24

A possessor may lose his possession:
(a) By the abandonment of the thing
(b) By an assignment made to another either by onerous or gratuitous title
(c) By the destruction or total loss of the thing, or because it goes out of commerce
(d) By the possession of another if the possession has lasted longer than one year. But the real right of possession is not lost until after the lapse of ten years.

Question 25

When is the possession of a movable property not deemed as lost?

Answer 25

The possession of movables is not deemed lost so long as they remain under the control of the possessor, even though for the time being he may not know of their whereabouts.

Question 26

When is the possession of an immovable and of real rights not deemed as lost?

Answer 26

The possession of immovables and of real rights is not deemed lost, or transferred for purposes of prescription to the prejudice of third persons, except in accordance with the provisions of the Mortgage Law and the Land Registration Laws.