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F. Possession

1. Characteristics

a. CONCEPT

Possession is the holding of a thing or the enjoyment of a right. (Article 523, Civil Code)

b. HOW EXERCISED

Possession may be exercised in one’s own name or in that of another. (Article 524, Ibid.)

c. CONTINUITY OF CHARACTER OF POSSESSION

It is presumed that possession continues to be enjoyed in the same character in which it was acquired, until the contrary is proved. (Article 529, Ibid.)

d. WHAT MAY BE THE SUBJECT OF POSSESSION

Only things and rights which are susceptible of being appropriated may be the object of possession.(Article 530, Ibid.)

2. Acquisition of possession

a. MODES OF ACQUISITION

1) Material occupation

2) Exercise of a right

3) By will

4) By proper acts and legal formalities

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. (Article 531, Ibid.)

b. WHO MAY ACQUIRE POSSESSION

1) Possessor

2) His legal representative/agent

3) Any person without any power whatever

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. (Article 532, Ibid.)

c. DECEDENT, SUCCESSORS / HEIRS

1) Continuous and uninterrupted possession

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.(Article 533, Ibid.)

One who validly renounces an inheritance is deemed never to have possessed the same. (Paragraph 2, Article 533, Ibid.)

2) Wrongful possession by decedent

a) Non-transferrable to successors

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 the death of the decedent. (Article 534, Ibid.)

3) Effects of good faith possession by decedent

a) Transfers only from date of death

The effects of possession in good faith shall not benefit him [successor] except from the date of the death of the decedent. (Article 534, Ibid.)

d. MINORS AND INCAPACITATED PERSONS

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. (Article 535, Ibid.)

e. FORCE OR INTIMIDATION

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. (Article 536, Ibid.)

f. TOLERATION

Acts merely tolerated, and those executed clandestinely and without the knowledge of the possessor of a thing, or by violence, do not affect possession. (Article 537, Ibid.)

g. POSSESSION AS A FACT

GENERAL RULE: Possession as a fact cannot be recognized at the same time in two different personalities. (Article 538, Ibid.)

EXCEPTION: … except in the cases of co-possession. (Ibid.)

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. (Ibid.)

3. Effects of possession

a. RIGHT TO BE RESPECTED IN HIS/HER POSSESSION

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.(Article 539, Ibid.)

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. (Paragraph 2, Article 539, Ibid.)

b. POSSESSION IN THE CONCEPT OF OWNER, TO ACQUIRE DOMINION

Only the possession acquired and enjoyed in the concept of owner can serve as a title for acquiring dominion. (Article 540, Ibid.)

c. PRESUMPTION OF JUST TITLE IN FAVOR OF POSSESSOR

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. (Article 541, Ibid.)

d. PRESUMPTION OF MOVABLES INCLUDED IN POSSESSION OF REAL PROPERTY

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. (Article 5242, Ibid.)

e. CO-POSSESSION

1) Presumption of exclusive possession for allotted part

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

2) Interruption prejudices all possessor, civil interruption subject to Rules of Court

Interruption in the possession of the whole or a part of a thing possessed in common shall be to the prejudice of all the possessors. However, in case of civil interruption, the Rules of Court shall apply. (Article 543, Ibid.)

3) Shared costs of litigation

The costs of litigation over the property shall be borne by every possessor.(Article 550, Ibid.)

4. Loss or unlawful deprivation of a movable

a. POSSESSION OF LOST MOVABLE

1) Acquired in good faith, equivalent to title

The possession of movable property acquired in good faith is equivalent to a title. (Article 559, Ibid.)

Improvements caused by nature or time shall always insure to the benefit of the person who has succeeded in recovering possession.(Article 551, Ibid.)

2) Right to recover by previous owner

Nevertheless, one who has lost any movable or has been unlawfully deprived thereof may recover it from the person in possession of the same. (Article 559, Ibid.)

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. (Article 561, Ibid.)

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. (Article 553, Ibid.)

3) Good faith acquisition via public sale, subject to reimbursement

If the possessor of a movable lost or 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. (Paragraph 2, Article 559, Ibid.)

b. AS TO ANIMALS

1) Wild animals

Wild animals are possessed only while they are under one’s control. (Article 560, Ibid.)

2) Domesticated or tamed animals

Domesticated or tamed animals are considered domestic or tame if they retain the habit of returning to the premises of the possessor. (Article 560, Ibid.)

5. Possession in concept of owner, holder, in one’s own name, and in name of another

a. CONCEPTS OF POSSESSION

1) Concept of owner

2) Possessor or holder of the thing/right

a) In one’s own name

b) In name of another

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. (Article 525, Ibid.)

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.(Article 554, Ibid.)

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. (Article 558, Ibid.)

6. Rights of the possessor

a. GOOD FAITH ON POSSESSOR

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. (Article 526, Ibid.)

Mistake upon a doubtful or difficult question of law may be the basis of good faith. (Paragraph 3, Article 526, Ibid.)

Good faith is always presumed, and upon him who alleges bad faith on the part of a possessor rests the burden of proof. (Article 527, Ibid.)

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. (Article 528, Ibid.)

1) Entitled to fruits

A possessor in good faith is entitled to the fruits received before the possession is legally interrupted. (Article 554, Ibid.)

Natural and industrial fruits are considered received from the time they are gathered or severed.(Paragraph 2, Article 544, Ibid.)

Civil fruits are deemed to accrue daily and belong to the possessor in good faith in that proportion.(Paragraph 3, Article 524, Ibid.)

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. (Article 545, Ibid.)

The charges shall be divided on the same basis by the two possessors.(Paragraph 2, Article 545, Ibid.)

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.(Paragraph 3, Article 545, Ibid.)

2) Right to be reimbursed for expenses

a) Necessary expenses

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. (Article 546, Ibid.)

b) Useful expenses

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. (Paragraph 2, Article 546, Ibid.)

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 under paragraph 2 of the preceding article. (Ibid.)

c) Pure luxury expenses

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. (Article 548, Ibid.)

d) No liability for deterioration – with exceptions

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. (Article 552, Ibid.)

b. BAD FAITH ON POSSESSOR

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. (Article 526, Ibid.)

He is deemed a possessor in bad faith who possesses in any case contrary to the foregoing. (Paragraph 2, Article 526, Ibid.)

1) Obligation to reimburse fruits

The possessor in bad faith shall reimburse the fruits received and those which the legitimate possessor could have received. (Article 549, Ibid.)

2) Righto to be reimbursed

a) Necessary expenses

b) Reimbursement to third persons

Possessor in bad faith shall have a right only to the expenses mentioned in paragraph 1 of Article 546 and in Article 443. (Article 549, Ibid.)

Cross-referenced article/s

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. (Article 546, Ibid.)

He who receives the fruits has the obligation to pay the expenses made by a third person in their production, gathering, and preservation.(Article 443, Ibid.)

c) Pure luxury 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 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 paying the value they may have at the time he enters into possession. (Paragraph 2, Article 549, Ibid.)

3) Liability for deterioration even in fortuitous event

A possessor in bad faith shall be liable for deterioration or loss in every case, even if caused by a fortuitous event. (Paragraph 2, Article 552, Ibid.)

7. Loss or termination of possession

a. MODES OF TERMINATING POSSESSION

1) Common provision, movable and immovable

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. (Article 555, Ibid.)

2) Movables

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. (Article 556, Ibid.)

3) Immovable

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. (Article 557, Ibid.)

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