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POSSESSION

Article 523. Possession is the holding of a thing or the enjoyment of a right.

1. As an act – (Holding) Holding of a thing or enjoyment of a right with the intention to possess in one's
own right.

2. As a fact – (existence) when there is holding or enjoyment.

3. As a right – (consequences) the right of a person to holding or enjoyment to the exclusion of all others

The fact of possession gives rise to certain rights and presumption, such as the right to be respected in
his possession, and should he be disturbed, he shall be protected in or restored to said possession. (539)

*Possession is not a definitive proof of ownership nor is non-possession inconsistent therewith. (Heirs of
Bofill v. CA, 1994)

As a RIGHT -

a) Jus possidendi – right to possession which is incidental to or included in the right of ownership.
b) Jus possessionis – right of possession independent from the right of ownership.

REQUISITES

1. occupancy, apprehension, or taking – (possesion in fact) may be actual or constructive.

2. deliberate intention to possess (animus possidendi)

*insane cannot acquire possession.

3. by virtue of ones own right – in his own name or in that of another

POSSESSION v. OWNERSHIP

1. A person may be declared the owner but he may not be entitled to possession.

2. A person may have introduced improvements thereon of which he may not be deprived without due
hearing. He may have other valid defenses to resist surrender of possession.

3. Judgement for ownership does not necessarily include possession as a necessary incident.

POSSESSION – Degrees:
1. Grammatical Degree - possession without any title whatsoever (theif or squatter)

2. Juridical Possession - possession with juridical title – based on juridical relation between possessor
and owner. (lessee, usufructuary, etc.)

3. Real Possessory Right - possession with just title sufficient to transfer ownership. Possession of an
adverse claimant whose title is sufficient to transfer ownership but is defective.

4. Dominium - possession with a title in fee simple. Based on right of dominion or possession of an
owner, highest degree of possession.

POSSESSION – Classes:

a) In one’s own name – where possessor claims the thing for himself.
b) In the name of another – for whom the thing is held by the possessor.
* Voluntary – by virtue of agreement. (agent – principal)

* Necessary or Legal – when exercised by virtue of law. (in behalf of incapacitated persons, parent-child,
etc.)

* Unauthorized – This will become the principal's possession only after there has been ratification
without prejudice to the effects of negotiorium gestio.

Note: Landlord is in actual possession thru the tenant. Hence, he can also bring a suit against an
intruder. (Simpao v. Dizon)

According to Concept of Possession

1) In the concept of owner (Art. 525) – possessor of thing or right, by his actions, is considered or
believed by others as the owner, regardless of good or bad faith of the possessor, recognizing no
title of ownership in another.

 Only the possession acquired and enjoyed in the concept of owner can serve as a title for
acquiring dominion. (540)
 Such possessor is presumed to possess just title. (541)
 Such adverse possession may ripen into ownership.

Possession: In the concept of Owner

Note: It is essential that such flaw or defect in the title must be such that it will have the effect
of invalidating the title. If flaw or defect does not result in invalidation of title, he is not merely a
possessor in good faith but the owner. The phrase “possessor in good faith” presupposes
ownership of another. (Pershing Tan Cueto v. Ca, GR 35648)

Possession in concept of holder

 In the concept of holder, possessor holds it merely to keep or enjoy it, the ownership
pertaining to another person; possessor acknowledges in another a superior right which he
believes to be ownership; cannot acquire ownership by prescription (525)
 None of these holders may assert a claim of ownership for himself over the thing but they
may be considered as possessors in the concept of owner, or under claim of ownership, with
respect to the right they respectively exercise over the thing.
 Note: There can be possession in concept of both owner and holder or in neither.

Possession by Condition of Mind

 In good faith, possessor is not aware that there is in his title or mode of acquisition a defect
that invalidates it. (Art. 526)

Requisites:

1. Ostensible title or mode of acquisition


2. Vice or defect in the title
3. Possessor is ignorant of the vice or defect and must have an honest belief that the thing
belongs to him
NOTE: Gross and inexcusable ignorance of the law may not be the basis of good faith, but
possible, excusable ignorance may be such basis. (Kasilag vs Roque, 69 PHIL 217)

IN BAD FAITH:

 possessor is aware of the invalidating defect in his own title.


 Only personal knowledge of the flaw in one’s title or mode of acquisition can make him a
possessor in bad faith. It is not transmissible even to an heir.
 Possession in good faith ceases from the moment defects in his title are made known to the
possessor. This interruption of good faith may take place at the date of summons or that of
the answer if the date of summons does not appear. However, there is a contrary view that
the date of summons may be insufficient to convince the possessor that his title is defective.
 The distinction between possession in good faith and possession in bad faith is of
importance principally in connection with the receipt of fruits and the payment of expenses
and improvements under 544-553, and the acquisition of ownership by prescription under
1127. However, such distinction is immaterial in the exercise of the right to recover under
Art. 539 which speaks of every possessor.
 Mistake upon a doubtful or difficult question of law, which may be the basis of good faith
under 536, refers to honest error in the application of the law or interpretation of doubtful
or conflicting legal provisions or doctrines, but is different form “ignorance of the law,” as
when a person acquired property by a deed which is absolutely void because it is in violation
of prohibitory laws.
 Bad faith is personal. Just because a person is in bad faith does not mean that his
successors-in-interest are also in bad faith.

*A lessee who continues to stay on the premises after the expiration of the lease contract is deemed a
usurper; as such he has become a possessor in bad faith (Republic v. Diaz, GR 36486, 1979)

 Possession in good faith is converted to possession in bad faith from the moment facts exist
showing the possessor's knowledge of the flaw. (538)
 In the absence of other facts showing the possessors knowledge, good faith is interrupted
from the receipt of service of judicial summons.
 If cannot be determined, then at the time of filing an answer.

Extent of Possession:

 Actual possession – occupancy in fact of the whole or at least substantially the whole
property.
 Constructive possession – occupancy of part, in the name of the whole, under such
circumstances that the law extends the occupancy to the possession of the whole.

Presumptions in favor of possessor:

1. of good faith (Art. 527)


2. of continuity of initial good faith (Art. 528)
3. of enjoyment in the same character in which possession was acquired until the contrary is proved
(Art. 529)
4. of non-interruption in favor of the present possessor (554) and of hereditary property. (Art. 533)
5. of continuous possession by the one who recovers possession of which he was wrongfully
deprived (Art. 561)
6. of extension of possession of real property to all movables contained therein. (Art. 542)
7. Of just title Art. (541)
8. Of continuity of possession of property unjustly lost but legally recovered (Art. 561)
9. If possession during intervening period (Art. 1138)
10. Of exclusive possession of common property by each one of the participants of their allotted
share upon division. (Art. 543)

Object of possession:

General Rule: All things and rights susceptible of being appropriated


Exceptions:
1. Res communes
2. Property of public dominion
3. Discontinuous servitudes
4. Non-apparent servitudes

Acquisition of possession, Art. 531-538

Essential requirements of Possession


 Corpus (or thing physically detained)
 Animus or intent to possess (expressly or impliedly)
Manner
1. Material occupancy of the thing or exercise of a right - includes both actual delivery and
constructive delivery (tradition brevi manu and constitutum possessorium)
2. Subjection to the action of our will – includes tradition longa manu and tradition simblica.
3. Proper acts and legal formalities established for acquiring such right.

POSSESSION MAY BE ACQURED REQUISITES

1. Personally or by the same person who is to 1. Intent to Possess.


enjoy it. 2. Capacity to Possess.
3. Object must be capable of being possessed.

2. Through an authorized person or by his legal 1. Intent to Possess for Principal.


representative or agent. 2. Authority/Capacity to Possess for Principal.
3. Principal has intent and capacity to Possess.
4. Object must be capable of being possessed.
3. Through an unauthorized person or by any 1. Intent to Possess for another – principal.
persons without any power or authority 2. Capacity of principal to possess.
whatsoever. 3. Ratification by principal
Art. 532
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 negotiorum gestio.

Acquisition by Succession Mortis Causa:


1) Time of Acquisition – If the inheritance is accepted, the estate is transmitted without interruption
from the death of the predecessor, but the heir who repudiates is deemed never to have acquired
possession. Art. 533
 Note: An heir can sell whatever right, interest or participation he may have in the property
under administration, subject to the result of said administration.
 From the moment of death the decedent, each of his heirs becomes the undivided owner of
the whole estate left with respect to that portion which might be adjudicated to him.

2) Effect of bad faith of the decedent – One who succeeds by hereditary title shall not suffer the
consequences of the wrongful possession of the decedent unless it is shown that he had knowledge
of the defects affecting it; but the effects of possession in good faith shall not benefit him except
from the death of the decedent. (Art. 534)
 Tacking of Possession: The latter part of 534 is not applicable if the father (or decedent) had
been in good faith, for the son (or heir) would not suffer. In such a case, the possession of
the father in good faith is added to the possession of the son in good faith, and we cannot
say that the effects of possession in good fatih shall commence only from the decedent's
death.

Acquisition by Minors and Incapacitated

General Rule: Acquisition of possession by the action of our will and by proper acts and legal
formalities are not applicable to incapacitated persons subject to the laws on succession and
donation. 535

Exception: Minors and incapacitated persons may acquire the physical possession of corporeal
properties, but they need the assistance of their legal representatives in order to exercise the rights
from which the possession arise in their favour. Art. 535

Note: Minors and incapacitated persons may acquire property or rights by prescription, either
personally or thru their parents, guardians, or legal representatives. Art. 1107
Modes by which Possession Cannot be Acquired:

1) By Force or intimidation, as long as there is a possessor who objects thereto. Art. 536

Note: for all intents and purposes, a legal possessor, even if physically ousted, is still deemed the
legal possessor. (Caquena v. Bolante, GR 137944, 2000)

2) Through mere Tolerance. Art. 537

 Acts merely tolerated are those which by reason of neighbourliness or familiarity, the owner
of property, allows his neighbour or another person to do on the property.

NOTE: It is difficult to draw a dividing line between tolerance of the owner and abandonment of his
rights when the acts of the possessor are repeated, specially when the lapse of time has consolidated
and affirmed a relation the legality of the origin of which can be doubted. When there is license or
permission, the proof is easy. It is for the court to decide in each case whether there exists mere
tolerance or an abandonment of rights on the part of the owner.

 Silence or inaction is negligence, not tolerance. But where a person occupies another land
with the latter permission (tolerance), the occupier, no matter how long he may remain, can
never acquire ownership, because he never had possession.
 Possession by mere tolerance is not adverse. Thus, it does not start the running of the
period of acquisitive prescription.

3) Through Clandestine, secret possession

Requisites:

 The acts are not public


 It must be unknown to the possessor or owner

NOTE: A person who believes himself entitled to the possession of property may not take the law into
his hands. (Bishop of Cebu v. Mangaron, GR 1748, 1906) or else he will be made to suffer the
consequences of his lawlessness. (Santiago v. Cruz, GR 31919)

 For this reason 536 mandates that he must invoke the aid of competent court, if the holder
should refuse to deliver the thing.

Conflicts between several claimants:

General Rule: Possession as a fact cannot be recognized in two different personalities.

Exception: in case of co-possession when there is no conflict

Criteria in case of dispute:

1. present/actual possessor shall be preferred


2. if there are two possessors, the one longer in possession.
3. if the dates of possession are the same, the one with a title.
4. if all the above are equal, the fact of possession shall be judicially determined, and in the meantime,
the thing shall be placed in judicial deposit.

EFFECTS OF POSSESSION

 Rights of Every Possessor (whether in concept or owner or holder):


1) To be respected in his possession.
2) To be protected in or restored to said possession by legal means should he be disturbed
therein.
3) To secure from a competent court in an action for forcible entry the writ of preliminary
mandatory injuection to restore him in his possession.
4) If all the above are equal, the fact of possession shall be judicially determined, and in the
meantime, the thing shall be placed in judicial deposit.

Note: A squatter has no possessory rights of any kind against the owner of the land into which he has
intruded. (Banez v. CA, 30351, 1974)

Possession in the concept of Owner

Article 540. Only the possession acquired and enjoyed in the concept of owner can serve as a title for
acquiring dominion. (even if he acted in bad faith)

Article 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.

Presumption of just title does not apply in acquisitive prescription. The adverse possessor must prove
his just title.

Kinds of Titles:

1. True and Valid Title – there was a mode of transferring ownership and the grantor was the owner.

2. Colorable Title – there was such mode of transferring ownership, but the grantor was not the owner.

3. Putative Title – that title although a person believes himself to be the owner, he nonetheless is not,
because there was no mode of acquiring ownership.
Note: Colorable title is what is meant by “just title” in the law of prescription, and not Valid title, for if it
were the latter, there could be no necessity of still acquiring ownership thru prescription, the grantee
being already the owner. (Solis v. CA, GR 46753-54, 1989)

Possession in the Concept of Holder

1. Lessees
2. Trustees, including: parents, husband and wife.
3. Antichretic creditors
4. Agents
5. Attorney's regarding their client's properties
6. Depositaries
7. Co-owners

Note: Possession of real property presumes that of the movables therein, so long as it is not shown or
proved that they should be excluded. Art. 542

Presumption applies whether the possessor be in good faith or bad faith, in one's own name or in
another's and in the concept of holder.

Rules on Co-Possession:

1. Each one of the participants of a thing possessed in common shall be deemed to have exclusively
possessed the part which may be alloted to him upon division thereof, for the entire period during
which the co-possession lasted. Art. 543

2. Interruption in the possession of the whole or a part of a thing possessed in common shall be to the
prejudice of all possessors.

3. In case of civil interruption, the Rules of Court shall apply.

Civil interruption:

 When interruption is produced by judicial summons to the possessor, and only those
possessors served with judicial summons are affected.

Note: Judicial summons shall be deemed not to have been issued, and shall not give rise to
interruption:

a) if it should be void for lack of legal solemnities


b) If the plaintiff should desist from the complaint or should allow the proceedings to lapse
c) If the possessor should be absolved from the complaint.
 In all these cases, the period of interruption shall be counted for the prescription. (Art.
1124)

POSSESSOR IN GOOD FAITH POSSESSOR IN BAD FAITH

AS TO FRUITS GATHERED
TO POSSESSOR TO OWNER

AS TO CULTIVATION EXPENSES OF GATHERED FRUITS

NOT REIMBURSED TO POSSESSOR REIMBURSED TO POSSESSOR

AS TO FRUITS PENDING AND CHARGES


PRO-RATED ACCORDING TO TIME OF TO OWNER
POSSESSION OF OWNER AND
POSSESSOR

AS TO PRODUCTION EXPENSES OF PENDING FRUITS

INDEMNITY PRO-RATA TO POSSESSOR NO INDEMNITY


(OWNER’S OPTION) IN MONEY, OR BY
ALLOWING FULL CULTIVATION AND
GATHERING OF ALL FRUITS

AS TO NECESSARY EXPENSES

REIMBURSED TO POSSESSOR; REIMBURSED TO POSSESSOR; NO RETENTION


RETENTION

AS TO THE USEFUL EXPENSES

REIMBURSED TO POSSESSOR (OWNER’S NO REIMBURSEMENT. RIGHT OF REMOVAL


OPTION) INITIAL COST PLUS VALUE AND PROVIDED THAT THE THING SUFFERS NO INJURY
MAY REMOVE IF NO REIMBURSEMENT, AND LAWFUL POSSESSOR DOES NOT PREFER TO
AND NO DAMAGE IS CAUSED TO THE RETAIN THEM BY PAYING THE VALUE THEY MAY
PRINCIPAL BY THE REMOVAL WITH HAVE AT THE TIME HE ENTERS INTO
RIGHT OF RETENTION. 546 POSSESSION. 549

AS TO THE ORNAMENTAL EXPENSES


1. NO REIMBURSEMENT; 3. NO REIMBURSEMENT;
2. REMOVAL WITHOUT INJURY 4. REMOVAL WITHOUT INJURY OR
OR REIMBURSEMENT OF REIMBURSEMENT OF VALUE AT TIME
AMOUNT EXPENDED AT OF RECOVERY AT OPTION OF
OPTION OF LAWFUL LAWFUL POSSESSOR.
POSSESSOR

AS TO THE TAXES AND CHARGES


(1. ON CAPITAL, 2. ON FRUITS AND 3. ON CHARGES)

TAXES AND CHARGES TAXES AND CHARGES


1. CHARGED TO OWNER 1. CHARGED TO OWNER
2. CHARGED TO POSSESSOR 2. CHARGED TO OWNER
3. PRO-RATED 3. CHARGED TO OWNER

AS TO IMPROVEMENTS NO LONGER EXISTING

NO REIMBURSEMENT NO REIMBURSEMENT
POSSESSOR IN GOOD FAITH POSSESSOR IN BAD FAITH

AS TO LIABILITY FOR ACCIDENTAL LOSS OR DETERIORATION

ONLY IF ACTING WITH FRAUDULENT LIABLE IN EVERY CASE


INTENT OR NEGLIGENCE, AFTER
SUMMONS. 552
NOTE: BEFORE RECEIPT OF JUDICIAL
SUMMONS, POSSESSOR NOT LIABLE. 537

AS TO IMPROVEMENTS DUE TO TIME OR NATURE

TO OWNER OR LAWFUL POSSESSOR TO OWNER OR LAWFUL POSSESSOR

NECESSARY EXPENSES
- Those made for the preservation of the thing.

USEFUL EXPENSES
- Those that add value to property or increase the object’s productivity.

ORNAMENTAL/LUXURY EXPENSES
- Those that add value to the thing only for certain person in view of their particular whims;
neither essential for preservation nor useful everybody in general.
LOSS OF POSSESSION, Art. 555
General Causes:
1) By the will of the possessor
a) Abandonment; and
b) Assignment
2) Against the will of the possessor
a) Eminent domain;
b) Acquisitive prescription;
c) Judicial decree in favor of one who has a better right;
d) Possession of another for more than one year;

Note: This refers to possession de facto where the possessor loses the right to a summary action; but he
may still bring an action publiciana or reinvidicatoria.

e) By reason of the object


- Destruction or total loss of the things;
- Withdrawal from commerce

Acts NOT constituting Loss of Possession, Art. 537-538

1. Acts executed by stealth and without knowledge of the possessor;


2. Acts merely tolerated either by the possessor or by his representative or holder in his name
unless authorized or ratified;
3. Violence; and
4. Temporary ignorance of the whereabouts movable property.

 The possessor who recovers possession is considered as having had uninterrupted


possession despite these acts of violence, stealth and tolerance; but he must recover
possession by due process, and not otherwise. Art. 539
 Possessory acts of mere holder does not bind or prejudice the possessor in the concept of
owner, unless said acts were previously authorized or ratified by the latter. Art. 558

POSSESSION OF MOVABLES, Art. 559

Theory of Irrevendicability

General Rule: Possession in good faith of a movable is presumed ownership. It is equivalent to title. No
further proof is necessary. (Aznar v. Yapdiangco, GR 18536, 1965)
The rule is necessary for purposes of facilitating transactions on movable property which are usually
done without special formalities. (Sotto v. Enage, 1947)

Requisites:

1. Possession is in good faith;


2. The owner has voluntarily parted with the possession of the thing;
3. Possessor is in the concept of owner.

Exception: one who has lost or has been unlawfully deprived of a movable may recover it from whoever
possess it without reimbursement.

Two (2) exceptions to the general rule of irrevendicability,when the owner

(1) has lost the thing, or


(2) has been unlawfully deprived thereof.
In these cases, 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.' (Aznar vs.
Yapdiangco, 13 SCRA 486).

Unlawful Deprivation

 It includes all cases of taking that constitute a criminal offense.


 If there was a perfected unconditional contract of sale between the seller and the buyer and the
former voluntarily caused the transfer, title thereto was acquired. The subsequent dishonor of
the check merely amounted to a failure of consideration which does not render the contract of
sale void. But merely allows the prejudiced party to sue for specific performance or rescission of
the contract and to prosecute the impostor for estafa under 315 of the RPC. (EDCA Publishing v.
Santos, GR 80298, 1990)

 One who has lost or has been unlawfully deprived of a movable may recover it from whoever
possesses it without reimbursement. The owner of the thing must prove:

1) Ownership of the thing

2) Loss or unlawful deprivation; or bad faith of the possessor.

Exceptions to Exception:

1) Where the owner acts negligently or voluntarily parts with the thing owned, he cannot
recover it from the possessor.

2) If the possessor of the movable acquired it in good faith at a public sale, the owner cannot
obtain its return without reimbursing the price paid therefore. Art. 418
Public Sale

One where there has been a public notice of the sale in which anyone is allowed to bid for the
object he desires to buy.

Summary of Recovery or Non-recovery Principle

Owner may recover without Owner may recover but should Owner Cannot Recover
reimbursement reimburse

1. From possessor in bad faith; If possessor acquired the object 1. If possessor had acquired it
2. From possessor in good faith in good faith at public auction in good faith by purchase
(if the owner lost the sale. from a merchant’s store, or
property or has been in fairs or markets in
unlawfully deprived of it.) accordance with the Code of
Commerce and special laws;
2. If owner is by his conduct
precluded from denying the
seller’s authority to sell;
3. If possessor had obtained
the goods because he was
an innocent purchaser for
value and holder of a
negotiable document of title
to the goods.

Possession of Animals, Art. 560

Wild Animals

Those living in a state of nature independently of and without the aid and care of man; they are
considered possessed only while they are under man’s control.

Domesticated/Tamed Animals

1. Wild or savage by nature but have been subdued and became accustomed to live in a tamed
condition;
2. Considered possessed if they habitually return to the premises of their possessor; and
3. Live, born and reared under the control and care of man.

Domestic/Tame Animals

Any of the various animals which live and are born and reared under the control and care of man,
lacking the instinct to roam freely.