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ART. 523 POSSESSION IS THE HOLDING OF A THING OR THE ENJOYMENT OF A RIGHT.

. POSSESSION From the word pos sedere (to be settled) or posse The holding or control of a thing (this is possession proper); or the exercise of a right (only quasi- possession since a right is incorporeal)

NOTE: Under ART.430 NCC distinguished natural and civil possession. It has been abolished, because at all events, all kinds of rightful possession are entitled to protection. Besides, the alleged distinction was confusing, since the possession of a thief under said rule was one of civil possession, with the thief intending to make as his own, the thing stolen. REQUISITES OR ELEMENTS OF POSSESSION a. There must be a holding or control (occupancy or apprehension) of a thing or right. (The holding may be actual or constructive) b. There must be deliberate intention to possess (animus possidendi). This is a state of mind. c. The possession must be by virtue of ones own right. ( This may be because he is an owner or because of a right derived from the owner such as that of a tenant. ) An agent who holds is not truly in possession; it is the principal who possesses thru the agent. HOLDING OR DETENTION may be either actual or constructive occupation does not mean that a man has to have his feet on every square meter of ground before it can be said that he is in possession. Essential in constructive possession that the property be not in adverse possession of another.

POSSESSION IS A FACT. But from the moment it exists, certain consequences follow, thus making possession ALSO A RIGHT. VIEWPOINTS OF POSSESSION a. Right TO possession (jus possidendi) a right or incident of ownership. b. Right OF possession (jus possessionis) This is an independent right of itself, independent of ownership. DEGREES OF POSSESSION a. Mere holding or having, without any right whatsoever.(grammatical degree; i.e. possession by a thief) b. Possession with a juridical title, but not that of an owner. (juridical possession; i.e. lessee, pledgee, depositary) c. Possession with a just title, but not from the true owner. (possessory right; i.e. A in good faith buys and automobile from B who delivers the same to A and who merely pretended to be the owner.) d. Possession with a title of dominum, that is, with a just title from the owner. (This is really ownership or possession that springs from ownership.)

CLASSES OF POSSESSION a. In ones own name or in that of another b. In the concept of owner and in the concept of the holder c. In good faith or in bad faith OWNERSHIP IS DIFFERENT FROM POSSESSION Possession is not a definite proof of ownership

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. Concept of owner or holder CONCEPT OF OWNER - other people believe thru my actions, that I am the owner of the property, hence considered in the opinion of others as owner. CONCEPT OF HOLDER here I recognize another to be the owner

ART. 524. POSSEESION MAY BE EXERCUSED IN ONES OWN NAME OR IN THAT OF ANOTHER NAMES UNDER WHICH POSSESSION MAY BE EXERCISED a. ones own name b. name of another POSSESSION IN ANOTHERS NAME a. Voluntary as when the agent possesses for the principal (by virtue of agreement) b. Necessary as when the mother possess for a child still in the maternal womb c. Unauthorized This will become the principals possession only after there has been a ratification without prejudice to the effects of negotiorum gestio

Examples a. that of the tenant b. that of the usufructuary c. that of the depositary d. that of the bailee in commodatum Possession of the THING itself, is different from the possession of the RIGHT TO ENJOY the thing.

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 A POSSESSOR IN BAD FAITH WHO POSSESS IN ANY CASE CONTRARY TO THE FOREGOING. MISTAKE UPON A DOUBTFUL OR DIFFICULT QUESTION OF LAW MAY BE THE BASIS OF GOOD FAITH. There must be a flaw. If aware of it, the possessor is in BAD FAITH If not aware, he is in GOOD FAITH. If there Is no flaw at all, the article should not apply.

ART. 527. GOOD FAITH IS ALWAYS PRESUMED, AND UPON HIM WHO ALLEGES BAD FAITH ON THE PART OF A POSSESSOR RESTS THE BURDEN OF PROOF. Presumption of Good Faith The presumption of innocence is given because every person should be presumed honest until the contrary is proved.

When NO EVIDENCE is presented showing bad faith If No evidence is presented proving bad faith, the presumption of good faith remains. This is so even if the possessor has profited as when he had rented the land to others.

Possessor in Good Faith One who is not aware that there exists in his title or mode of acquisition any flaw which invalidates it.

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 When Possession in Good Faith is Converted to Possession in Bad Faith a. From the moment facts exist showing the possessors knowledge of the flaw, from that time should he be considered as possessor in bad faith. b. It does not matter whether the facts were caused by him or some other person. When bad faith begins Existence of bad faith may begin either from receipt of judicial summons or even before such time as when a letter is received from the true owner asking the possessor to stop planting on the land because somebody else owns it.

Possessor in Bad Faith One who is not in good faith. Personal. Just because a person is in bad faith does not necessarily mean that his successors in interest are also in bad faith.

ART. 529. IT IS PRESUMED THAT POSSESSION CONTINUES TO BE ENJOYED IN THE SAME CHARACTER IN WHICH IT WAS ACQUIRED, UNTIL THE CONTRARY IS PROVED. Some Presumptions Regarding Possession a. Good Faith Good faith is always presumed. b. 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. c. Non-Interruption of Possession The possession of hereditary property is deemed transmitted to the heir without interruption and from the moment of death of the decedent, in case the inheritance is accepted. One who validly renounces an inheritance is deemed to never to have possessed the same. d. Presumption of Just Title A possessor in the concept of owner has in his favour the legal presumption that he possesses with just title, and he cannot be obliged to show or prove it. e. Non- Interruption of Possession Of Property Unjustly Lost But Legally Recovered 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. f. Possession during intervening Period. It is presumed that the present possessor who was also the possessor at the previous time, unless there is proof to the contrary. g. Possession of Movables with 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.

h. Exclusive Possession of Common Property Each owner of the participants of a thing possessed in common shall be deemed to have exclusively possessed the party which may be allotted to him upon the division thereof, for the entire period during which the co-possesion lasted.

ART. 530. ONLY THINGS AND RIGHTS WHICH ARE SUSCEPTIBLE OF BEING APPROPRIATED MAY BE THE OBJECT OF POSSESSION What may or may not be possessed Only those things and rights which are susceptible of being appropriated. Only PROPERTY may be the objects of possession. The following cannot be appropriated and hence cannot be possessed: property of public dominion, res communes, easements, things specifically prohibited by law.

RES NULLIUS Abandoned or ownerless property May be possessed, but cannot be acquired by prescription. Reason : prescription presupposes prior ownership in another. However said res nullius may be acquired by occupation.

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 How is possession Acquired

a. By material occupation (detention) of a thing or the exercise of a right (quasi-possession). This also includes constitutum possessorium or tradition brevi manu. b. By subjection to our will (this includes tradition longa manu by mere agreement; or by the delivery of keys traditio simbolica)(clearly, this does not require actual physical detention or seizure.) c. By constructive possession or proper acts and legal formalities (such as succession, donation, execution of public instruments; or thru the possession by a sheriff by virtue of a court order) NOTE: 1. Constitutum Possessorium - exists when a person who possessed property as an owner, now possesses it in some other capacity, as that of lease or depositary. 2. Traditio brevi manu exists when a person who possessed property not as an owner, now possess it as an owner. 3. Traditio longa manu (delivery by long hand) delivery by consent or mere pointing. Essential Requirements for Possession a. The corpus (or the thing physically detained) b. the animus or intent to possess (whether evidenced expressly or impliedly) Constructive Possession of Land If an entire parcel is possessed under claim of ownership, there is constructive possession of the entire parcel, UNLESS a portion thereof

is adversely possessed by another. The area must be within reasonable limits it is not enough to merely plant a sign. ART. 532. POSSESSION MAY BE ACQUIRED BY THE SAME PERSON WHO IS TO ENJOY IT, BY HIS LEGAL REPRESENTRATIVE, BY HIS AGENT OR BY ANY PERSON WITHOUT ANY POWER WHATEVER; BUT IN THE LAST CASE, THE POSSESSION SHAL 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. 1. Acquisition of Possession from the Viewpoint of Who Possesses. a. personal b. thru authorized person (agent or legal representative) c. thru UNAUTHORIZED person (but only if subsequently RATIFIED) 2. Essential requisites a. for personal acquisition 1. intent to possess 2. capacity to possess 3. object must be capable of being possessed b. thru and authorized person 1. intent to possess for principal (not for agent) 2. authority or capacity to possess (for another) 3. principal has intent and capacity to possess

c. thru an unauthorized person (as in negotiorum gestio) 1. intent to possess for another (the principal) 2. capacity of principal to possess 3. ratification by principal 3. Negotiorum Gestio Art 2144 NCC 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. 1. Acquisition of Possession thru Succession Mortis Causa 2. Time of Acquisition of Possession a. If heir accepts from the moment of death since there is no interruption. b. If heir refuses (or is incapacitated to inherit) he is deemed NEVER to have possessed the same. 3. If heir accepts Consequences : 1. If an intruder should force entry into the premises, either the administrator or the son may institute the action of forcible entry. 2. For purposes of prescription, the sons possession is considered uninterrupted.

3. BUT, if during the period of 25 days, the son had forced himself into the premises, the administrator would have had the right to sue him for forcible entry. 4. IF HEIR RENOUNCES a. one who validly renounces inheritance is deemed never to have possessed the same. b. If no heirs, the State is supposed to have succeeded him and therefore the State was the owner and possessor of the property ART. 534. 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. (see book for commentary) 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. 1. Acquisition of Possession by Minors and Incapacitated Persons - A minor may acquire the possession of a pen donated to him, but in case of a court action regarding ownership over the pen, his parents or legal representatives must intervene. 2. persons referred to in this article a. unemancipated minors

b. minors emancipated by parental concession or by marriage c. other incapacitated persons like 1. the insane 2. the prodigal or spendthrift 3. those under civil interdiction 4. deaf-mutes 3. Nature of their Possession - it is clear that they have the capacity to act and NOT possession where juridical acts are imperative like the possession of land the ownership of which he desires to test in court. 4. Acquisition by Prescription - Minors and other incapacitated persons may acquire property or rights by prescription, either personally or thru their parents, guardians or legal replresentatives.

1. thru FORCE or INTIMIDATION (as long as there is a possessor who objects thereto) NOTE: If at first there was objection, but later on, such objection ceases, the possession begun by force or intimidation may be acquired. Objection may be made suit of forcible entry within a year from the dispossession, otherwise the possession de facto is lost. 2. thru mere TOLERANCE 3. thru clandestine, secret possession (or possession without knowledge) 2. HOW TO RECOVER POSSESSION - if a person has been deprived of possession, he cannot take the law into his own hands - FIRST he should request the usurper to give up the thing and if the latter refuses, the former should invoke the aid of the proper and competent court - OTHERWISE the owner can be made the defendant in a forcible entry case with all its repercussions. NOTE: An action of forcible entry or unlawful detainer may be brought even against the owner.

ART. 536. 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. 1. Modes thru which possession cannot be acquired. Possession cannot be acquired:

ART. 537. ACTS MERELY TOLERATED, AND THOSE EXECUTED CLANDESTINELY AND WITHOUT THE KNOWLEDGE OF THE POSSESSOR OF A THING OR BY VIOLENCE DO NOT AFFECT POSSESSION. Acts of Tolerance or Secrecy Tolerance permission Possession by a Squatter A squatters possession, when there is no violence, is by mere tolerance. 1-year period for filing and unlawful detainer case against him should be counted from the latest demand to vacate is made Unless in the meantime, an accion publiciana is instituted.

- done to oust possessor; or if occupied during the latters absence, done to prevent his getting back to the premises ACTS DO NOT AFFECT POSSESSION a. The intruder does not acquire any right to possession (NO LEGAL POSSESSION) b. The legal possessor, even if physically ousted, is still the possessor and therefore - still entitled to the benefits of prescription; - still entitled to the fruits; - still entitled as possessor for all purposes favourable to his possession c. The intruder cannot acquire the property by prescription. 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 PREFERREDL 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. GENERAL RULE -Possession as a fact cannot be recognized at the same time in two different personalities EXCEPTIONS - Co-possessors - Possession in different concepts or different degrees

Clandestine Possession Secret possession Possession by stealth Possession must be unknown to the owner If it is secret to many, but known to the owner, his possession is affected. Presumption : when possession is clandestine, it is also unknown to the owner.

Possession by Force or Violence a. Force may be proved expressly or by implication. b. The force may be: - actual or merely threatened; - done by possessor himself or by his agent; - done against the owner or against any other possessor, or against the owners representative, such as capataz

RULES OR CRITERIA TO BE USED IN CASE OF CONFLICT OR DISPUTE REGARDING POSSESSION a. present possessor shall be preferred b. if both are present, the one longer in possession c. if both began to possess at the same time, the one who present a title d. if both present a title, the Court will determine WHEN THE ARTICLE APPLIES : Applies to preference of possession; (whether real or personal property is involved) Applies whether the possession was longer or shorter than one year

3. if there was no possession, to the person who presents the oldest title, provided that the title had been acquired in good faith

PREFERENCE OF OWNERSHIP (NOT POSSESSION) In case of a double sale or a double donation

a. MOVABLE PROPERTY preference in ownership is given to the person who first possessed it in good faith b. IMMOVABLE PROPERTY Preference in ownership is given 1. to the first who registered his right in good faith in the Registry of Property 2. if there was no registration, to the person who first possessed in good faith

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