POSSESSION

Possession
Possession is the holding of a thing or the enjoyment of a right. It extends to both
corporeal and incorporeal things.

Possession v. occupation
Possession is a real right while occupation is one of the original modes of acquiring
ownership and other real rights.

Possession v. ownership
Possession, the holding of a thing or the exercise of a right, while ownership exists
when a thing pertaining to one person is completely subjected to his will in a manner not
prohibited by law and inconsistent with the rights of others. There can be possession
without ownership.

Elements of possession:
1. Occupancy, apprehension or taking;
2. Intent to possess (animus possidendi) – a state of mind, the presence and
determination of which is largely dependent on the circumstances obtaining in
each case.

Actual possession
It exists when the thing is in the immediate physical possession or control of a person.
Actual possession of land consists in the manifestation of acts of dominion over it of
such nature as those a party would naturally exercise over his own property.

Constructive possession
It exists when the thing is under the dominion and control of the person or when he has
the right to exercise dominion and control over the place where it is found.

Right to possession (jus possidendi)

Possession as a mere incident of ownership.
Right of possession (jus possessionis)
A right independent and apart from ownership. Title V of the Civil Code deals with right
of possession.

Degrees of possession:
1. Possession without any title or right
2. Possession with a juridical title or right but not in the concept of owner
3. Possession with a just title
4. Possession derived from the right of ownership or possession with a just title
from the true owner

Classification of possession under the Civil Code

1. Possession in one’s own name and possession in the name of another
2. Possession in the concept of an owner and possession in the concept of a holder
3. Possession in good faith and possession in bad faith

Possession in one’s own name

This embraces all kinds of possession anchored on a juridical title or right.

Possession in another’s name

1. Possession strictly as an agent
2. Possession with a right belonging to the person exercising the possession in the
name of another of which right that person is in possession thereby implying a
juridical relation between them

Possession in the concept of an owner

It may be the owner himself or one who claims to be so. It refers to the opinion or belief
of the neighbors and the rest of the world and not that of the possessor.
Even if the possession is in bad faith, so long as he claims ownership of the property
and does not acknowledge in another a superior right, he is nonetheless considered a
possessor in the concept of an owner.
Possession as a mere holder
Acknowledges in another a superior right which he believes to be ownership, whether
his belief be right or wrong.

Good faith
It encompasses an honest belief, the absence of malice and the absence of design to
defraud or to seek an unconscionable advantage.

Possessor in good faith

1. Possessor has a title or mode of acquisition
2. There is a flaw or defect in said title or mode which invalidates it
3. The possessor is unaware of the flaw or defect or believes that the thing belongs
to him
Possessor’s mistake upon a doubtful or difficult question of law may serve as basis of
his good faith, in which case such mistake will not render him a possessor in good faith.
Gross and inexcusable ignorance of the law may not be the basis of good faith, but
excusable error arising from complex legal principles and from the interpretation of
conflicting or doubtful doctrines may be such basis.

Presumption of good faith

Good faith is always presumed. However, it is only a juris tantum and may be overcome
by proof to the contrary.
This presumption ends when facts exist to show that the possessor is already aware
that he wrongfully or improperly possesses the thing.

Possessor in bad faith

One who is not in good faith. If circumstances exist that require a prudent man to
investigate, he will be in bad faith if he does not investigate.
Bad faith is personal. A child or heir may be presumed in good faith notwithstanding the
father’s bad faith.

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

Modes of acquiring possession:

1. By material occupation of a thing or the exercise of a right
2. By subjecting the thing or right to the action of our will
3. By the proper acts and legal formalities established for the acquisition of such
right (constructive possession)

Requisites for acquisition of possession

1. The corpus
2. Intent to possess

Doctrine of constructive possession

1. The alleged possessor must be in actual possession of a portion or part of the
property
2. He is claiming ownership of the whole area
3. The remainder of the area must not be in the adverse possession of another
person
4. The area claimed must be reasonable

Capacity to acquire possession

It is clear from Art. 535 that it is applicable only to acquisition of possession by minors
and incapacitated persons over things but not over rights.

Effect of succession
If possession of property is effected by way of succession, whether testate or intestate,
such possession is deemed transmitted to the heir without interruption from the moment
of the death of the decedent but only if the heir accepts the inheritance.
The existence of bad faith on the part of one possessor does not prejudice his
successors-in-interest. If the heir is not aware of the flaws affecting the title or mode of
acquisition of the decedent, the heir shall be considered a possessor in good faith
because good faith is always presumed.
Instances where possession is not acquired:
(1) The law does not recognize the acquisition of possession through force, violence,
or intimidation.
(2) Persons whose occupation of a property is by sheer tolerance of its owners are
not considered as possessors in law.
(3) Acts which are executed clandestinely and without the knowledge of the
possessor do not affect possession.

Conflict over possession de facto

1. Present possessor shall be preferred
2. If there are two possessors, the one longer in possession is preferred
3. If the dates of possession are the same, the one who presents a title
4. If both present a title, the thing shall be judicially deposited

Preference of ownership (Art. 1544)

a) Movable property – who first possessed it in good faith.
b) Immovable property—
1. First who registered his right in good faith;
2. First who possessed it in good faith;
3. Oldest title.

Right to protection of possessors

The protection is given because the law assumes that possessor of the thing is the
owner and also because even if the possessor is not the owner, his situation should be
protected until it is shown that there is another person with a better right.

Possession in the concept of owner

1. It raises a disputable presumption of ownership
2. It creates a disputable presumption that the possessor has just title and he
cannot be obliged to show it
3. It can ripen into ownership through acquisitive prescription

Co-possession
It implies that the thing subject matter thereof is undivided and there are two or more
possessors. If the co-possession is under claim of ownership, each of the co-possessor
is considered as the possessor of the whole and over the whole each may exercise the
right of possession. It will last until partition.

Right of possessor in good faith to fruits

The possessor in good faith is entitled to the fruits received by him before his
possession is legally interrupted. This is one of the instances where the owner is not
entitled to the fruits.

When fruits considered received

Natural and industrial fruits are considered received from the time that they are
gathered or severed.
Civil fruits are deemed to accrue daily, thus, the possessor in good faith shall be entitled
only to those which have accrued prior to the interruption of his good faith.

Possessor in good faith; pending fruits

If at the time the good faith ceases, there should be pending natural or industrial fruits,
the possessor and the owner shall have a right to a part of the net harvest and each
shall divide the expenses of cultivation, both in proportion to the time of their respective
possessions. The possessor must accept the owner’s choice otherwise he will lose the
right to be indemnified.

Rights of possessor in bad faith to fruits

If the possessor is in bad faith he is not entitled to the fruits whether the fruits have
already been received by him or are still pending.
The possessor in bad faith shall have the obligation to reimburse not only the fruits
actually received by him but also of those which the legitimate possessor could have
received.
Nonetheless, the possessor in bad faith has the right to recover from the legitimate
possessor the expenses for the production, gather, and preservation of the fruits.

Kinds of expenses:
 1. Necessary expenses: made for the preservation of a thing or those without
which the thing would deteriorate or be lost.
2. Useful expenses: to give greater utility or productivity to the property.
3. Ornamental or luxurious expenses: merely embellish the property.

Right of possessors to necessary expenses

Whether in good faith or in bad faith, a possessor is entitled to the refund of necessary
expenses incurred by him.
A possessor in good faith also has the right to retain the thing until he has been
reimbursed therefor. Possessor in bad faith does not have this right.

Right of possessors to useful expenses

Only the possessor in good faith is entitled to the refund of useful expenses.
In making the refund, the owner has the option:
1. To refund the amount of the expenses
2. To pay the increase in value which the thing may have acquired by reason of the
useful expenses.

Possessor in good faith may, in lieu of reimbursement for the useful expenses, remove
the useful improvement but subject to the following:
1. Removal can be done without damage to the principal.
2. Owner does not choose to appropriate the improvements by refunding to the
possessor in good faith the useful expenses.

Right of possessors to ornamental expenses

Whether in good faith or in bad faith, a possessor is not entitled to a refund of the
ornamental expenses. Both kinds of possessors are entitled to a right of removal of the
ornaments with which they embellished the principal thing provided that such principal
suffer no injury.
If the owner, however, exercises his option to retain possession of the ornaments by
reimbursing the value thereof to the possessor, the latter’s right of removal may not be
exercised.
If the possessor is in good faith, the extent of the refund shall be the actual amount
expended. If the possessor is in bad faith, the extent of the refund shall be limited to the
value of the ornament at the time the owner enters into the possession of the property.

Improvements caused by nature

They shall inure to the owner without need of indemnifying the possessor in good faith.

Improvements which ceased to exist

A possessor in good faith is entitled to a refund of the useful expenses incurred by him
only if the useful improvement is still existing at the time of the recovery of the property
by the legitimate possessor.
If the improvements made by the possessor in good faith have already ceased to exist
at the time the legitimate possessor recovers possession, the latter is in no way
benefitted.

Liability of possessors for loss or deterioration

The possessor who is originally in good faith but becomes in bad faith upon the service
of the judicial summons on him shall be liable for any deterioration or loss of the thing
possessed only if the same is caused by his negligence or fraudulent acts.

Presumption of continuity of possession

If the present possessor can show proof that he was also in possession of the property
at some previous time, his possession will be presumed to be continuous covering even
the intermediate period.
If the possession is transmitted by hereditary title, the presumption of continuity of
possession is one which is conclusive and may not be overthrown by proof to the
contrary.

Modes of losing possession

1. Abandonment: hope of recovery is gone and the intent to recover is given up.
2. Assignment: involves the relinquishment of possession in favor of a definite or
specified transferee.
 3. Destruction or loss of the thing: it perishes, goes out of commerce, or
disappears in such a manner that its existence is unknown or cannot be
recovered.
4. Possession by another: real right of possession is lost after the lapse of 10
years.

Misplaced or mislaid movables

When a movable is simply misplaced or mislaid, the possessor does not automatically
lose possession because the movable is still deemed remaining under his control even
though for the time being he may not know its whereabouts.
They will be deemed remaining under his control so long as they are not under the
control of another possessor.

Possession of movables equal to title

1. Movable property must be acquired in good faith
2. Possession must be in the concept of owner

Exceptions to irreivindicability
When the owner—
1. Has lost the thing
2. Has been unlawfully deprived thereof
The possessor cannot retain the thing as against the owner, who may recover it without
paying any indemnity, except when the possessor acquired it in a public sale.

In case of loss
If the finder knows the previous possessor, the movable must be returned to the latter. If
the possessor is unknown, the finder is required to immediately deposit the movable
with the mayor where the finding has taken place. The mayor is required to make a
public announcement of such finding for 2 consecutive weeks. If after 6 months the
owner does not appear, the thing found or its value shall be awarded to the finder.
If finder does not comply, he will be guilty of theft.