VI.
POSSESSION
A. Definition and Concept (Art. 523)
o Possession is the holding of a thing or the enjoyment of a right, whether by material
occupation or by the fact that the thing or the right is subjected to the action of our
will.
o It is a real right independent of and apart from ownership i.e., the right of possession
(jus possession is as distinguished from the right to possess [just possidendi]
1. Essential requisites of possession:
a. Holding or control or control of a thing or right (corpus) consists of either
i. The material or physical
ii. Exercise of a right
iii. Constructive possession
b. Intention to possess (animus possidendi)
B. Degrees of Holding or Possession
1. Mere holding or possession without title whatsoever and in violation of the right of
the owner, e.g. possession of a thief or a usurper of land.
2. Possession with juridical title but not that of ownership e.g. possession of tenant,
depository agent, bailee, trustee, lessee, antichretic creditor. This degree of possession
will never ripen into full ownership as long as there is no repudiation of concept
under which property is held.
3. Possession with just title or title sufficient to transfer ownership, but not from the true
owner e.g. possession of a vendee from vendor who pretends to be the owner.
o This degree of possession ripens into full ownership by lapse of time.
4. Possession with just title from the true owner. The delivery of possession transfers
ownership, and strictly speaking, is the jus possidendi.
C. Cases of Possession
1. Possession for oneself, or possession exercised in one’s own name and possession in
the name of another – (Art. 524)
2. Possession in the concept of an owner and possession in the concept of a holder with
the ownership belonging to another (Art. 525)
3. Possession in good faith and possession in bad faith (Art. 526)
Mistake upon a doubtful or difficult question of law as a basis of good faith.
D. What things or rights susceptible of appropriation may be the object of possession
(Art. 530)
E. What may not be possessed by private persons
a) Res communes
b) Property of public dominion
c) Right under discontinuous and/or non-apparent easement
F. Acquisition of Possession
1. Ways of acquiring possession (Art. 531)
a. Material occupation to the thing
o The doctrine of constructive possession
o Includes constructive delivery
1. Traditio brevi manu (thing already in transferee’s hands, e.g. under
a contract of lease, then delivered under a sale)
2. Traditio constitutum possessorium (thing remains in transferor’s
hands, e.g. sale, then retained under a commodatum)
b.Subjection to the action of our will
c. Includes traditio longa manu and traditio symbolica
d.Proper acts and legal formalities – refers to the acquisition of possession
by sufficient title, inter vivos or mortis causa, lucrative or onerous.
Example: donations, succession (testate on intestate), contracts, judicial
writs of possession, writ of execution of judgments execution and
registration of public instruments.
2. By whom may possession be acquired: (Art. 532)
a. By same person; elements of personal acquisition
b. By his legal representative; requisites
c. By his agent
d. By any person without any power whatsoever but subject to ratification,
without prejudice to proper case of negotiorum gestio (Art. 2144), 4129,
2150)Qualifiedly, minors and incapacitated persons (Art. 525)
3. What do not affect possession (Art. 537, 1119)
a. Acts merely tolerated
b. Acts executed clandestinely and without the knowledge of the possessor
c. Acts by violence as long as possessor objects thereto (i.e. he files a case) (Art.
536)
4. Rules to solve conflict of possession (Art. 538)
o General Rule: Possession cannot be recognized in two different personalities,
except in cases of co-possession by co-possessors without conflicting claims or
interest.
o In case of conflicting possession – preference is given to:
a. Present possessor or actual possessor
b. If there are two or more possessors, the one longer in possession
c. If dates of possession are the same, the one who presents a title
d. If all conditions are equal, the thing shall be place in judicial deposit pending
determination of possession or ownership through proper proceedings
G. Effects of Possession
1. In general, every possessor has a right to be respected in his possession; if
disturbed therein, possessor has right to be protected in or restored to said
possession (Art. 539)
a. Action to recover possession
o Summary proceedings – forcible entry and unlawful detainer.
Plaintiff may ask for writ of preliminary mandatory injunction.
o Accion publiciana (based on the superior right of possession, not
of ownership)
o Accion revindicatoria (recovery of ownership)
o Action for replevin (possession or ownership for movable
property)
2. Possessor can employ self-help (Art. 429)
3. Entitlement to fruits – possessor in good faith / bad faith
4. Reimbursement for expenses –possessor in good faith /bad faith
Liability for loss or deterioration of property by possessor in bad faith. (Art.
552, 553)
5. Possession of movable acquired in good (in concept of owner) is equivalent to
title (Art. 559)
o Possessor has actual title which is defeasible only by true owner
o One who has lost a movable or has been unlawfully deprived thereof may
recover it without reimbursement, except if possessor acquired it at a public
sale.
H. Effect of possession in the concept of owner
a. Possession may ripen into full ownership, subject to certain exceptions
b. Presumption of just title and cannot be obliged to show or prove it (Art. 541);
exceptions (Art. 1131)
c. Possessor may bring all actions necessary to protect his possession except accion
reivindicatoria
d. May employ self-help under Art. 429
e. Possessor may ask for inscription of such real right of possession in the registry of
property
f. Has right to the fruits and reimbursement for expenses (assuming he is a possessor in
good faith)
g. Upon recovery of possession which he has been unlawfully deprived may demand
fruits and damages.
h. Generally, he can do on the things possessed everything that the law authorizes owner
to do until he is ousted by one who has a better right.
i. Possession in good faith and possession in bad faith. (Art. 528).
I. Presumptions in favor of the possessor
1. Of good faith until the contrary is proved (Art. 527)
2. Of continuity of initial good faith in which possession was commenced or possession
in good faith does not lose this character except in the case and from the moment
possessor became aware or is not unaware of improper or wrongful possession. (Art.
528).
3. Of enjoyment of possession in the same character in which possession was acquired
until contrary is proved (Art. 529)
4. Of non-interruption of possession in favor of present possessor who proves
possession at a previous time until the contrary is proved (Art. 554) Arts. 112-1124)
5. Of continuous possession or non-interruption of possession of which he was
wrongfully deprived for all purposes favorable to him (Art. 561)
6. Other presumptions with respect to specific properties of property rights:
a. Of extension of possession of real property to all movables contained therein
so long as it is not shown that the should be excluded; exceptions (Art. 426).
b. Non-interruption of possession of hereditary property (Art. 533 & 1078)
c. Of just title in favor of possessor in concept of owner (Art. 541; but also see
Art. 1141).
d.
J. Possession may be lost by:
a. Abandonment
b. Assignment, either onerous or gratuitous
c. Destruction of total loss of thing or it goes out of commerce
d. Possession by another, if possession has lasted longer than one year; real right of
possession not lost until after ten (10) years.
Subject to art. 537 (acts merely tolerated, etc.)
