CONCEPT
A. Meaning and requisites
Possession is the holding of a thing or
enjoyment of a right. (523). There must
be occupancy or control of the thing or
right, and with the intention to possess.
The intention can be inferred when the
thing is under the power and control of
the possessor, as in the crime of illegal
possession of firearm.
The thing must be appropriable to be
object of possession. (530). That is, it is a
property.
B. Degrees of possession
1. With juridical title, such as that of a
lessee, agent, pledgee and trustee.
They have a juridical relation either
by law or contract, with the owner.
2. With just title, such as that of a
possessor in good faith who
acquired the thing from a seller who
was not the true owner.
3. With title in fee simple which is that
of the owner himself.
4. Without any title whatsoever, such
as that of a thief or squatter. The
latters possession is by mere
tolerance.
KINDS OF POSSESSION
A. Classes of possession.
1. (a) in ones own name, such as that
of a real owner; or (b) in the name of
another, such as that of a agent
(524).
The latter (b) may be physical or
material possession, eg. Mere
custodian of funds like a bank teller;
or juridical possession, eg an agent
who receives proceeds of sale and
may retain the same for as long as
his commission is not paid.
2. (a) in concept of owner, that is,
possession by the owner himself
who claims and acts as an owner
even if he is not; or (b) in the
concept of holder, that is, the
possessor acknowledges that
another is the owner, eg lessee,
pledgee, usufructuary, depositary
and bailee (525)
3. (a) in good faith, that is a possessor
who is not aware of any defect that
invalidates his title; or (b) in bad
faith, that is a possessor who is
aware of such defect. (526).
4. (a) Actual possession, or occupancy
in fact of the thing wholly or
partially; or (b) Constructive
possession, or occupancy of a part
which is deemed by law to extend to
control of the whole. In case of the
latter, the possessor must be able to
subject the entire property to the
action of his will.
POSSESSION
ACQUISITION
B. Possession in concept of owner.
It is possession in concept of owner that
can serve to acquire ownership by
prescription (540).
- Movables: 4 or 8 yrs
- Immovables: 10 or 30 yrs
- Good & bad faith
However, a Torrens certificate of title
over land is imprescriptible. Exception: a
forged document may be the root of a
valid title, as when the certificate of title
has been transferred to the name of the
forger or of a person chosen by the
forger, and the land is sold later to an
innocent purchaser for value (IPV).
C. Possession in concept of holder
Lessee, depositary, agent, trustee, those
who acquire possession by threat or
intimidation and those whose possession
is merely tolerated, cannot acquire
dominion by acquisitive prescription.
A. Possession is acquired by (531):
1. Material occupation of a thing or
exercise of a right
2. Subjection of a thing or right to ones
will.
3. By proper acts and legal formalities
established for acquiring the right of
possession.
Examples of the last are succession,
donation, sale, and writ of possession.
Possession may be acquired by the
person who is to enjoy it or through a
legal representative. It may even be
through an unauthorized person
provided his possession is ratified later
by the principal.
B. Possession may not be:
1. Acquired through force or
intimidation as long as there is a
possessor who objects thereto.
(536).
2. Affected by acts merely
tolerated, and those executed
clandestinely and without the
knowledge of the possessor, and
by violence. (537). These acts
cannot ripen into ownership.
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 POSSESSION IN GOOD FAITH
A. Benefits of possessor in good
faith:
1. Entitled to fruits received before
possession was legally terminated
(544). If his possession is illegally
terminated, his entitlement to the
fruits continues.
2. Entitled to proportionate right to
natural and industrial fruits, and
obliged to proportionate part of
expenses of cultivation and of
charges (545).
3. May retain the thing until
reimbursed of necessary and useful
expenses. (546).
4. May remove useful improvements if
no damage is done thereby to the
principal, unless the possessor who
recovers possession refund the
expenses or pay increase in value of
the thing. (547).
5. Not entitled to right of refund of the
expenses for pure luxury or mere
pleasure, but may remove
ornaments if no damage is caused
thereby to the principal thing, unless
the possessor who recovers
possession opts to refund. (548).
6. Not liable for deterioration or loss of
thing, unless he is guilty of
negligence or quasi delict under
2176 (552). There may be good faith
and negligence at the same time.
B. Good faith and bad faith (526)
A possessor in good faith is one who is
not aware of any flaw in his title or in his
mode of acquisition of his possession.
A possessor in bad faith is one who is
aware of the defect.
A possessor in good faith may become a
possessor in bad faith when he learns or
becomes aware of the flaw in his title or
mode of acquisition of his possession.
For example, when he is served the
judicial summons in a case filed by one
who claims the right of
possession/ownership over the property.
Of course, if he wins the case it is as if his
possession in good faith was never
interrupted.
POSSESSION
RIGHTS/REMEDIES OF POSSESSOR
A. Rights of possessor:
1. To be respected in his possession
2. To be protected in his possession
3. To be restored to his possession if
unjustly disturbed/deprived thereof
B. Remedies of possessor deprived
of his possession
1. Forcible entry and illegal detainer
2. Accion publiciana
3. Accion revindicatoria
4. Replevin
The first 3 remedies concern real
property while replevin applies to
personal property. A motion for writ of
replevin may be filed in the last remedy.
Forcible entry is when possession by the
trespasser is illegal from the start, and
done with fraud, intimidation, stealth,
threat or strategy (FISTS). In illegal
detainer, possession was legal at the
start but it became illegal later, eg. When
the lease has terminated but lessee
refuses without basis to vacate.
These remedies must be filed within 1
year from the illegal trespass/entry or
from the last demand to vacate. A
motion for writ of preliminary injunction
may be filed within 10 days from the
filing of he complaint.
C. Benefits recovery of possession
according to law
1. Entitlement to improvements caused
by nature or time (552).
2. No obligation to pay for
improvements which ceased to exist
at the time of the recovery (553).
3. Present possessor who shows
possession at some previous time is
presumed to have been in
possession during the intermediate
period, unless the contrary is
proved.
D. Recovery of possession lost
He may be required to pay for necessary
expenses incurred in the preservation of
the thing, as when the previous owner
was in good faith (536). Also, the latter
may remove useful improvements if the
removal thereof will not damage the
principal thing, unless the person who
recovered opts to refund the expenses or
pay increase in value. (547).
Expenses for luxury are not refunded.
But the previous possessor in good faith
may remove them provided no injury will
be caused to the principal, unless the
possessor who recovered opts to refund
the amount of expenses. (548).
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POSSESSION OF HEREDITARY PROPERTY
The rules are the following:
1. Possession and ownership of
hereditary property is transmitted to
the heir at the moment of death of
the decedent. An heir who validly
renounces his inheritance is deemed
not to have possessed and owned it
at all. (533).
2. The heirs period of possession
begins at death of decedent. But for
the purpose of acquisitive
prescription, his period of possession
may be tacked on to the length of
possession of the decedent.
3. Heir will not suffer consequences of
wrongful possession of decedent if
unaware of the defect. But his good
faith will benefit him only upon
death of decedent (534). This from
the death, the fruits of the property
belong to the heir until such time
that he acquires knowledge of the
defect. The fruits thereafter shall
belong to the person who recovers
validly the property.
4. Minors and incapacitated persons
may acquire possession as such in
succession. But they need assistance
of their legal representatives to
exercise right arising from
possession such as the reception of
the fruits thereof. (535). Excluded
are insane and demented persons
who cannot have intention to
possess (animus possidendi).
PRESUMPTIONS IN POSSESSION
The legal presumptions in favor of a
possessor are:
1. His possession is with legal title and
he is not obliged to show it (541).
2. Possession of real property includes
possession of the movables therein,
if this is not shown to be excluded
(542).
3. Co-possessor of a commonly
owned/held property is deemed to
have exclusively possessed that part
allotted to him upon partition, and
for the entire period of the co-
possession. (543).
4. Present possessor who shows his
possession at a previous time is
deemed to have held possession
during the intermediate period, in
the absence of contrary proof (554).
He does not have to prove his
possession during such intermediate
period.
5. A possessor who recovers according
to law possession unjustly lost, is
deemed to enjoy it without
interruption (561). This is important
for the purpose of acquisitive
prescription.
POSSESSION
PREFERENCE IN POSSESSION
In case of dispute as to which party ahs
rightful possession, preference is given in
the following order to:
1. The present or actual possessor
2. If there are 2 possessors, the one
longer in possession
3. If dates of the possession are the
same, the possessor who presents a
title
4. If all conditions are equal, the
question will be determined by the
court in proper proceeding
This rule of preference does not apply in
co-possession of commonly owned/held
property where it is possessed legally
and equally at the same time by two or
more persons
LOSS OF POSSESSION
Possession may be lost by (555):
1. Abandonment of the thing. The act
must be voluntary and without the
hope of recovery (spes recuperandi)
or intention to return (animus
reverend)
2. Assignment made to another, either
by onerous or gratuitous title
3. Destruction or loss of thing, either
intentionally or accidentally
4. The thing goes out of commerce, as
when it is expropriated for public
use, eg. For a road or public market;
it becomes public property and not
subject to private ownership or
possession
5. Possession by another for more than
1 year except when the possession
by the other person is by mere
tolerance as in the case of a squatter
(357).
Action for forcible entry or illegal
detainer where the issue in
possession is possession de facto can
no longer be filed. After one year,
the owners or former possessors
remedy is either accion publiciana or
accion revindicatoria where the
issue is possession de jure or better
right of possession
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