Title V - Possession

Question 1

Art. 523. Possession is the […].

Answer 1

Art. 523. Possession is the holding of a ting or the enjoyment of a right.

Question 2

What is the concept of possession according to De Leon?

Answer 2

Possession is the holding of a thing or the enjoyment of a right with the intention to possess in one’s own right.

Question 3

What is the difference between ownership and possession?

Answer 3

There is ownership when a thing pertaining to one person is completely subjected to the will in a manner not prohibited by law and consistent with the rights of others. Ownership confers certain right to the owner, among which are the right to enjoy the thing owned and the right to exclude other persons from possession thereof.

On the other hand, possession is defined as the holding of a thing or the enjoyment of a right. Literally, to possess means to actually and physically occupy a thing with or without a right.

Question 4

What are the two ways in which a person may have possession of a thing?

Answer 4

Possession in the concept of an owner, and possession of a holder.

Question 5

What are the elements of possession?

Answer 5

1. There must be holding or control of a thing or right;
2. The holding or control must be with intention to possess;
3. It must be in one’s own right.

Question 6

What are the relations created by possession?

Answer 6

1. Possessor’s relation to the property itself – assumes that the possessor exercises some degree of control more or less effective over the object;
2. Possessor’s relation to the world – possessor must also have the ability to exclude others from his possession.

Question 7

What are the forms or degrees of possession?

Answer 7

1. Possession without any title whatever – mere holding without any right or title at all;
2. Possession with a juridical title – possession is predicated on a juridical relation existing between the possessor and the owner;
3. Possession with a just title – possession of an adverse claimant whose title is sufficient to transfer ownership but is defective (ie. the seller is not the true owner but the possessor acted in good faith);
4. Possession with a title fee simple – possession derived from the right of dominion or possession of an owner. This is the highest degree of possession.

Question 8

What are the classes of possession?

Answer 8

1. Possession in one’s own name or in the name of another (Art. 524);
2. Possession in the concept of owner or possession in the concept of holder (Art. 525); and
3. Possession in good faith or possession in bad faith (Art. 526);

Question 9

Art. 524. Possession may be exercised in […].

Answer 9

Art. 524. Possession may be exercised in one’s own name or in that of another.

Question 10

Art. 525. The possession of things or rights may be had in one of two concepts: either in […], or in that of the […], the ownership pertaining to another person.

Answer 10

Art. 525. The possession of things or rights may be had in one of two concepts: either in the concept of owner, or in that of the holder of the thing or right to keep or enjoy it, the ownership pertaining to another person.

Question 11

Art. 526. He is deemed a possessor in good faith who is […].

He is deemed possessor in bad faith who possesses in any case […].

[…] may be the basis of good faith.

Answer 11

Art. 526. 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 possessor in bad faith who possesses in any case contrary to the foregoing.

Mistake upon a doubtful or difficult question of law may be the basis of good faith.

Question 12

Requisites for possession in good faith or in bad faith.

Answer 12

1. The possessor has a title or mode of acquisition;
2. There is a flaw or defect in said title or mode; and
3. The possessor is unaware or aware of the flaw or defect or believes that the thing belongs or does not belong to him.

Question 13

Art. 527. Good faith is […], and upon him who alleged bad faith on the part of a possessor […].

Answer 13

Art. 527. Good faith is always presumed, and upon him who alleged bad faith on the part of a possessor rests the burden of proof.

Question 14

Art. 528. Possession acquired in good faith does not lose this character except in the case and from […].

Answer 14

Art. 528. Possession acquired in good faith does not lose this character except in the case and from the moment facts exist which show that the possessor is not unaware that he possesses the thing improperly or wrongfully.

Question 15

Art. 529. It is presumed that possession continues to be […], until the contrary is proven.

Answer 15

Art. 529. It is presumed that possession continues to be enjoyed in the same character in which it was acquired, until the contrary is proven.

Question 16

Art. 530. Only things and rights which are […] may be the object of possession.

Answer 16

Art. 530. Only things and rights which are susceptible of being appropriated may be the object of possession.

Question 17

What is the difference between jus possidendi and jus possessionis?

Answer 17

jus possidendi - the right to possession which is incidental to and included in the right of ownership;

jus possessionis - the right of possession which is independent of and apart from the right ownership.

Question 18

What are the benefits to the possessor in fact?

Answer 18

The fact of possession gives rise to certain rights and presumptions. Thus, a possessor has a right to be respected in his possession, and should he be disturbed therein, he shall be protected in or restored to said possession. A possessor has in his favor the presumption that his possession is lawful – that he is the owner or has been given the right of possession by the owner. He who would disturb a possessor must show either ownership or a better possessory right. [De Leon]

Question 19

Is possession a definitive proof of ownership?

Answer 19

No. Possession is not a definitive proof of ownership nor is non-possession inconsistent therewith. Possession, however, may create ownership either by occupation or by acquisitive prescription.

Question 20

What is actual possession?

Answer 20

Actual possession is occupancy in fact of the whole or at least substantially the whole. With reference to land, it consists in the manifestation of acts of dominion over it of such a nature as a party would naturally exercise over his property. Literally this means to actually and physically occupy a thing with or without a right.

Question 21

What is constructive possession?

Answer 21

Constructive possession, on the other hand, is occupancy of part in the name of the whole under such circumstances that the law extends the occupancy to the possession of the whole.

Question 22

How may possession be exercised?

Answer 22

Art. 524. Possession may be exercised in one’s own name or in that of another.

Question 23

Differentiate voluntary possession in the name of another and necessary possession in the name of another.

Answer 23

There is voluntary possession in the name of another when the possession is exercised by virtue of an agreement while there is necessary or legal possession in the name of another when the possession is exercised by virtue of law; such as the possession in behalf of incapacitated persons and juridical entities.

Question 24

What is the legal effect of unauthorized voluntary possession by a third persons in the name of another?

Answer 24

The legal effect of unauthorized voluntary possession by a third persons in the name of another is that it shall not be effective unless it is ratified.

Question 25

Differentiate physical or material possession from juridical possession.

Answer 25

There is physical or material possession when the possessor is a mere custodian or keeper of the property or funds received and has no independent right or title to retain or possess the same as against the owner, such as the possession of money received by a teller for the bank.

There is juridical possession when the possession gives the transferee a right over the thing which the transferee may set up against the owner, such as the possession of an agent who receives the proceeds of sales of goods delivered to him in agency by his principal.

Question 26

What are the two concepts in which possession of things or rights may be had?

Answer 26

Art. 525. The possession of things or rights may be had in one of two concepts: either in the concept of owner, or in that of the holder of the thing or right to keep or enjoy it, the ownership pertaining to another person.

Question 27

When is a possessor deemed as a possessor in good faith?

Answer 27

According to paragraph 1 of Art. 526, “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.”

Question 28

When is a possessor deemed as a possessor in bad faith?

Answer 28

According to paragraph 2 of Art. 526, “He is deemed a possessor in bad faith who possessing any case contrary to the foregoing.” (i.e. he is aware that there exists in his title or mode of acquisition a flaw which invalidates it.)

Question 29

Is ignorance of the law a basis for good faith?

Answer 29

Manresa is of the opinion that gross and inexcusable ignorance of the law may not be the basis of good faith but excusable ignorance may be such basis if it is based upon ignorance of a fact.

Question 30

When does possession acquired in good faith lose the character of good faith?

Answer 30

Art. 528. Possession acquired in good faith does not lose this character except in the case and from the moment facts exist which show that the possessor is not unaware that he possesses the thing improperly or wrongfully.

Question 31

What may be the object of possession?

Answer 31

Art. 530 provides that “Only things and rights which are susceptible of being appropriated may be the object of possession.”

Question 32

How is possession acquired?

Answer 32

Art. 531. 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 33

What are the ways in acquiring possession?

Answer 33

1. By the material occupation or exercise of a right;
2. By the subjection of the thing or right to our will; and
3. By proper acts and legal formalities established for acquiring such right of possession.

Question 34

Who may acquire possession?

Answer 34

Possession may be acquired:

1. Personally or by the same person who is to enjoy it;
2. Thru an authorized person or by his legal representative or agent; and
3. Thru an unauthorized person or by any person without any power or authority whatever.

Art. 532. Possession may be acquired by the same person who is to enjoy it, by his legal representative, by his agent, or by any person without any power whatever; 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 has ratified the same, without prejudice to the juridical consequences of negotiorum gestio in a proper case.

Question 35

What is the exception to the rule that a person who acted without authority or legal representation does not acquire possession unless ratified?

Answer 35

The exception is when a person voluntarily manages the property or business of another (negotiorum gestio). In such case, the stranger’s (gestor’s) possession takes effect even without ratification by the owner of the property or business.

Question 36

When is the possession of hereditary property deemed transmitted?

Answer 36

Art. 533. The possession of hereditary property is deemed transmitted to the heir without interruption and from the moment of the 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 37

What is the effect if a person dies without heirs?

Answer 37

The possession is transmitted to the State.

Question 38

What is the effect upon the heir when the decedent acquired the property in bad faith?

Answer 38

Art. 534 provides that “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 was 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 39

May minors and incapacitated persons acquire the possession of things?

Answer 39

Yes. Under Art. 535, “Minors and incapacitated persons 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 40

May possession be acquired through force or intimidation?

Answer 40

No. Art. 536 provides, “In no case may possession be acquired through force or intimidation as long as there is a possessor who objects thereto. He who believes that he has an action or a right to deprive another of the holding of a thing, must invoke the aid of the competent court, if the holder should refuse to deliver the thing.”

Question 41

May acts of toleration affect possession?

Answer 41

No. Art. 537. Acts merely tolerated, and those executed clandestinely and without the knowledge of the possessor of the thing, or by violence, do not affect possession.

Question 42

Art. 539. Every possessor has a right to […]; and should he be disturbed therein he shall be […] by the means established by the laws and the Rules of Court.

A possessor deprived of his possession through forcible entry may within […] present a motion to secure from the competent court, in the action for forcible entry, a writ of […] to restore him in his possession. The court shall decide the motion within thirty (30) days from the filing thereof.

Answer 42

Art. 539. Every possessor has a right to be respected in his possession; and should he be disturbed therein he shall be protected in or restored to said possession by the means established by the laws and the Rules of Court.

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. The court shall decide the motion within thirty (30) days from the filing thereof.

Question 43

What are the rights of every possessor?

Answer 43

Every possessor, whether in the concept of owner or in the concept of holder, is given the following rights:

1. The right to be respected in his possession;
2. The right to be protected in or restored to said possession by legal means should he be disturbed therein; and
3. The right to secure from a competent court in an action for forcible entry the proper writ to restore him in his possession.

Question 44

What are the remedies of a person deprived of possession?

Answer 44

The remedies are:

1. forcible entry or unlawful detainer (accion interdictal);
2. accion publiciana;
3. accion reivindicatoria; and
4. replevin or manual delivery of personal property.

Question 45

Art. 538. 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, […], if there are two possessors, […]; if the dates of the possession are the same, […]; and if all these conditions are equal […] pending determination of its possession or ownership through proper proceedings.

Answer 45

Art. 538. 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; and if all these conditions are equal the thing shall be placed in judicial deposit pending determination of its possession or ownership through proper proceedings.

Question 46

What type of possession can serve as a title for acquiring dominion?

Answer 46

Art. 540. Only the possession acquired and enjoyed in the concept of owner can serve as a title for acquiring dominion.

Question 47

Art. 541. A possessor in the concept of owner has in his favor the legal presumption that he possesses with a […] and he cannot be […].

Answer 47

Art. 541. A possessor in the concept of owner has in his favor the legal presumption that he possesses with a just title and he cannot be obliged to show or prove it.

Question 48

What are the different kinds of title?

Answer 48

1. titulo verdadero y valido - true and valid title which by itself is sufficient to transfer ownership without need of possessing the property for the period necessary for acquiring title by prescription;
2. titulo justo - where the adverse claimant came into possession of the property though one of the modes recognized by law for the acquisition of ownership or other real rights, but the grantor was not the owner or could not transmit any right;
3. titulo colorado - one which a person has when he buys a thing in good faith, from one who is not the owner but whom he believes to be owner;
4. titulo putativo - one which a person believes he has but in fact he has not because there was no mode of acquiring ownership, as when one is in possession of a thing in the mistaken belief that it had been bequeathed to him.

Question 49

Art. 542. The possession of real property presumes that of the […], so long as it is not shown or proved that they should be excluded.

Answer 49

Art. 542. 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 50

What is the right of the possessor in good faith as regards the fruits?

Answer 50

Art. 544. A possessor in good faith is entitled to the fruits received before the possession is legally interrupted.

Question 51

When are natural and industrial fruits considered received? And when do civil fruits accrue?

Answer 51

Art. 544. A possessor in good faith is entitle to the fruits received before the possession is legally interrupted.

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

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

Question 52

What happens if at the time the good faith ceases, there are natural or industrial fruits of the property?

Answer 52

Art. 545. 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 off the expenses of cultivation, and to a part of the net harvest, both in proportion to the time of the possession.

The charges shall be divided on the same basis by the two possessors.

The owner of the thing may, should he so desire, 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; the possessor in good faith who for any reason whatever should refuse to accept this concession, shall lose the right to be indemnified in any other manner.

Question 53

Art. 546. […] to every possessor; but […] the thing until he has been reimbursed therefor.

[…], 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.

Answer 53

Art. 546. 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 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 54

What are necessary expenses?

Answer 54

Necessary expenses are expenses made for the preservation of the thing or those which seek to prevent the waste, deterioration, or loss of the thing; or those without which the thing would deteriorate or be lost.

Question 55

What are useful expenses?

Answer 55

Useful expenses are expenses which add value to a thing, or augment its income, or introduce improvements thereon or increase its usefulness to the possessor, or better serve the purpose for which it is intended.

Question 56

What are the option of the prevailing party regarding the useful expenses made by the possessor in good faith?

Answer 56

The options are: (1) refund the amount of the expenses; or (2) pay the increase in value which the thing may have acquired by reason of the useful expenses. (Art. 546 par. 2)

Question 57

May the possessor in good faith remove the useful improvements?

Answer 57

Yes. Art. 547 provides that “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 option under paragraph 2 of the preceding article.”

Question 58

What is the difference regarding the rules on useful improvements vis-a-vis possessor in good faith, and vis-a-vis possessor in bad faith?

Answer 58

If possessor is in good faith, he may remove the useful improvements if removal does not cause damage to the principal thing unless prevailing party exercises his options under Art. 546.

If possessor is in bad faith, he cannot remove the useful improvement even if removal is possible without injury to the principal thing.

Question 59

Does the possessor in good faith have the right to be reimbursed for expenses for pure luxury or pleasure?

Answer 59

No. Art. 548. Expenses for pure luxury or mere pleasure shall not be refunded to the possessor in good faith; but he may remove the ornaments with which he has embellished the principal thing if it suffers no injury thereby, and if his successor in the possession does not prefer to refund the amount expended.

Note: This provision also applies to possessors in bad faith.

Question 60

What is the obligation of the possessor in bad faith with respect to the fruits?

Answer 60

Reimburse the legitimate possessor. Art. 549. The possessor in bad faith shall reimburse the fruits received and those which the legitimate possessor could have received, and shall have a right only to the expenses mentioned in paragraph 1 of article 546 and in article 443. 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 for which such expenses have been incurred, provided that the thing suffers no injury thereby, and that the lawful possessor does not prefer to retain them by playing the value they may have at the time he enters into possession.

Question 61

What are the rights and liabilities of possessor in bad faith?

Answer 61

Rights and liabilities of possessor in bad faith:

1. Not entitled to fruits – obligation to reimburse legitimate possessor with value of fruits received and which the legitimate possessor could have received;
2. Necessary expenses - right to be reimbursed for necessary expenses, and expenses made for production, cultivation, and gathering of fruits;
3. Useful expenses - not entitled to reimbrusement; no right of removal;
4. Luxurious expenses - not entitled to reimbursement; but may remove provided no injury; if lawful possessor decides to appropriate the luxuries, possessor in bad faith has the right to reimbursement of the value;
5. Obligation to share with the charges;
6. Obligation to bear deterioration or loss;
7. Obligation to pay reasonable rent for use of property and for any damages caused

Question 62

Who shall bear the cost of litigation of the property?

Answer 62

Art. 550. The costs of litigation over the property shall be borne by every possessor.

Question 63

To whom shall improvements caused by nature or time inure to?

Answer 63

Art. 551. Improvements caused by nature or time shall always inure to the benefit of the person who has succeeded in recovering possession.

Question 64

Is the possessor in good faith liable for the deterioration of the thing possessed?

Answer 64

Generally no, unless he acted in fraudulent intent or negligence after the judicial summons.

Art. 552. A possessor in good faith shall not be liable for the deterioration of loss of the thing possessed, except in cases in which it is proved that he has acted with fraudulent intent or negligence, after the service of summons.

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

Question 65

Is the prevailing possessor obliged to pay for all improvements?

Answer 65

Not all, only those that exist at the time of recovery. Art. 553. One who recovers possession shall not be obliged to pay for improvements which have ceased to exist at the time he takes possession of the thing.

Question 66

Presumption of possession during intervening period.

Answer 66

Art. 554. A present possessor who shows his possession at some previous time, is presumed to have held possession also during the intermediate period, in the absence of proof to the contrary.

Question 67

What are the circumstances in which a possessor may lose possession of a thing?

Answer 67

Art. 555. A possessor may lose his possession:

1. By the abandonment of the thing;
2. By an assignment made to another either by onerous or gratuitous title;
3. By the destruction or total loss of the thing, or because it goes out of commerce;
4. By the possession of another subject to the provisions of article 537, if the new possession has lasted longer than one year. But the real right of possession is not lost till after the lapse of ten years.

Note: De Leon provides a 5th mode of losing possession: Recovery of awful possessor.

Question 68

When will possession of movables be considered lost?

Answer 68

When they cease to be under the control of the possessor either because: (a) they have come into the possession of a third person; or (2) taken by another and possessor does not know of the location, and even if known can no longer be recovered.

Art. 556. 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 their whereabouts.

Question 69

Art. 557. The possession of immovables and of real rights is not deemed lost or transferred for […], except in accordance with provisions of the Mortgage Law and the Land Registration Laws.

Answer 69

Art. 557. 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 provisions of the Mortgage Law and the Land Registration Laws.

Question 70

Is the owner bound by the acts of a possessor?

Answer 70

Generally, No. Art. 558. Acts relating to possession, executed or agreed to by one who possesses a thing belonging to another as a mere holder to enjoy or keep it, in any character, do not bind or prejudice the owner, unless he gave said holder express authority to do such acts, or ratifies them subsequently.

Question 71

Does possession of a movable acquired in good faith amount to a title?

Answer 71

Yes. Art. 559. The possession of movable property acquired in good faith is equivalent to a title. Nevertheless, one who has lost any movable or has been unlawfully deprived thereof, may recover it from the person in possession of the same.

If the possessor of a movable lost or of which the owner has been unlawfully deprived, has acquired it in good faith at a public sale, the owner cannot obtain its return without reimbursing the price paid therefor.

Question 72

When are wild animals considered possessed?

Answer 72

Art. 560. Wild animals are possessed only wile they are under one’s control; domesticated or tamed animals are considered domestic or tame, if they retain the habit of returning to the premises of the possessor.

Question 73

What is the effect of lawful recovery of possession unjustly lost?

Answer 73

Art. 561. One who recovers, according to law, possession unjustly lost, shall be deemed for all purposes which may redound to his benefit, to have enjoyed it without interruption.