Title V – POSSESSION

 Possession – holding of a thing or enjoyment of a right

1. occupancy – actual or constructive (corpus)

2. intent to possess (animus)

 How acquired:

1. material occupation – possession as a fact

1. physical
2. constructive – tradicion brevi manu (one who possess a thing
short of title of owner – lease );

tradicion constitutum possesorium (owner alienates thing but continues to possess –

depositary, pledgee, tenant)

 cannot be recognized at the same time in 2 different personalities except

co-possession
 question arise regarding fact of possession

1. present possessor preferred

2. 2 possessors – one longer in possession
3. dates of possession the same – one who presents a title
4. both have titles – judicial resolution

1. subject to action of our will- possession as a right

1. tradicion simbolica – delivering object or symbol of placing thing
under control of transferee (keys)
2. tradicion longa manu – pointing out to transferee the things
which are being transferred

1. proper acts and legal formalities established for acquiring rights –

donation, sale

 What can be subject of possession – things or rights which are

susceptible of being appropriated

 Degrees of possession:

1. holding w/o title and in violation of right of owner

2. possession with juridical title but not that of owner
3. possession with just title but not from true owner
4. possession with just title from true owner

 Classes of ownership:

1. in concept of owner – owner himself or adverse possessor

Effects:

1. may be converted into ownership through acquisitive prescription

2. bring actions necessary to protect possession
3. ask for inscription of possession
4. demand fruits and damages from one unlawfully detaining
property

1. in concept of holder – usufruct, lessee, bailee

2. in oneself – personal acquisition
1. he must have capacity to acquire possession
2. intent to possess
3. possibility to acquire possession

1. in name of another – agent; subject to authority and ratification if not

authorized; negotiorum gestio
1. representative has intention to acquire for another and not for
himself
2. person from whom it is acquired has intention of possessing it

1. in good faith – not aware that there exist flaw in title or mode w/c
invalidates it; mistake upon doubtful question of law; always presumed; it
may be interrupted – by extraneous evidence or suit for recovery of property
of true owner
2. in bad faith – aware of defect

 Possession through succession

1. possession of hereditary property is deemed transmitted w/o

interruption from moment of death ( if accepted) and if not accepted
( deemed never to have possessed the same )
2. one who succeeds by hereditary title shall not tack the bad faith of
predecessors in interest except when he is aware of flaws affecting title; but
effects of possession in good faith shall not benefit him except from date of
death of decedent.
 Minors/ Incapacitated

may acquire material possession but not right to possession; may only acquire them
through guardian or legal representatives

 Acquisition

1. cannot be acquired through force or intimidation when a possessor

objects thereto – resort to courts
2. the following do not affect acts of possession ( not deemed
abandonment of rights ); possession not interrupted
1. acts merely tolerated
2. clandestine and unknown acts
3. acts of violence

 Rights of possessor:

1. Right to be respected in his possession; if disturbed – protected by

means established by law; spoliation
2. Possession acquired and enjoyed in concept of owner can serve as title
for acquisitive prescription
1. Possession has to be in concept of owner, public, peaceful and
uninterrupted
2. Title short of ownership
3. Person in concept of owner has in his favor the legal presumption of just
title (prima facie)
4. Possession of real property presumes that movables are included
5. Co-possessors deemed to have exclusively possessed part which may be
allotted to him; interruption in whole or in part shall be to the prejudice of
all
6. Possessor in good faith entitled to fruits received before possession is
legally interrupted ( natural and industrial – gathered or severed; civil –
accrue daily )
7. Possessor in good faith entitled to part of net harvest and part of
expenses of cultivation if there are natural or industrial fruits
( proportionate to time of possession ); owner has option to require
possessor to finish cultivation and gathering of fruits and give net proceeds
as indemnity for his part of expenses; if possessor in good faith refuses –
barred from indemnification in other manner
8. Possessor has right to be indemnified for necessary expenses whether in
good faith or in bad faith; Possessor in good faith has right of retention over
thing unless necessary expenses paid by owner
9. Possessor in good faith has right to be reimbursed for useful expenses
with right of retention; owner has option of paying expenses or paying the
increase in value of property which thing acquired by reason of useful
expenses
10. Possessor in good faith may remove improvements if can be done w/o
damage to principal thing- unless owner exercises option of paying;
possessor in bad faith not entitled.
11. Possessor in good faith and bad faith may not be entitled to payment for
luxurious expense but may remove them provided principal is not injured –
provided owner does not refund the amount expended
12. Improvements caused by nature or time to inure to the benefit of person
who has succeeded in recovering possession
13. Wild animals possessed while in one’s control; domesticated –
possessed if they retain habit of returning back home
14. One who recovers, according to law, possession unjustly lost is deemed
to have enjoyed it w/o interruption

 Liabilities/duties of Possessor

1. Return of fruits if in bad faith – fruits legitimate possessor could have

received
2. Bear cost of litigation
3. Possessor in good faith not liable for loss or deterioration or loss except
when fraud and negligence intervened
4. Possessor in bad faith liable for loss or deterioration even if caused by
fortuitous event
5. Person who recovers possession not obliged to pay for improvements
which have ceased to exist at time of occupation

 Loss of possession:

1. abandonment of the thing – renunciation of right; intent to lose the

thing
2. assignment made to another by onerous or gratuitous title
3. destruction or total loss of the thing or thing went out of commerce
4. possession of another if new possession lasted longer that 1 year
( possession as a fact); real right of possession not lost except after 10 years

 Not lost:
1. Unlawfully deprived or lost
2. Acquired at public sale in good faith – with reimbursement
 3. Provision of law enabling the apparent owner to dispose as if he is
owner
4. Sale under order of the court
5. Purchases made at merchant stores, fairs or markets
6. Negotiable document of title

1. Even for time being he may not know their whereabouts, possession of
movable is not deemed lost
2. When agent encumbered property without express authority – except
when ratified
3. Possession may still be recovered:

 Possession is equivalent to title

1. possession is in good faith

2. owner has voluntarily parted with the possession of the thing
1. possessor is in concept of an owner

Title VI – USUFRUCT

 Usufruct – right to enjoy another’s property with correlative duty of

preserving its form and substance

1. things – movable/immovable
2. rights – provided it is not strictly personal

 Kinds:

1. legal – parents over children

2. voluntary – contracts, wills
3. mixed – prescription
4. total
5. partial
6. simultaneous
7. successive
8. pure
9. conditional
10. With a term

 Rights of usufructuary:

1. Right to civil, natural & industrial fruits of property

2. Right to hidden treasure as stranger
3. Right to transfer usufructuary rights – gratuitous or onerous; but is co-
terminus with term of usufruct; fruits proportionate at duration of usufruct;
but can’t do acts of ownership such as alienation or conveyance except when
property is:
4. consumable
5. intended for sale
6. appraised when delivered; if not appraised & consumable – return same
quality (mutuum)
7. Right not exempt from execution and can be sold at public auction by
owner
8. Naked owner still have rights but w/o prejudice to usufructuary; may
still exercise act of ownership –bring action to preserve
9. Right to fruits growing at time usufruct begins; growing fruits at
termination of usufruct belongs to owner
10. Right to necessary expenses from cultivation at end of usufruct
11. Right to enjoy accessions & servitudes in its favor & all benefits inherent
therein
12. Right to make use of dead trunks of fruit bearing trees & shrubs or those
uprooted/cut by accident but obliged to plant anew
13. Right of usufructuary of woodland – ordinary cutting as owner does
habitually or custom of place; cannot cut down trees unless it is for the
restoration of improvement of things in usufruct – must notify owner first
14. Right to leave dead, uprooted trees at the disposal of owner with right to
demand that owner should clear & remove them – if caused by calamity or
extraordinary event – impossible to replace them
15. Right to oblige owner to give authority & furnish him proofs if usufruct
is extended to recover real property or real right
16. Right to necessary expenses
17. Right to introduce useful & luxurious expenses but with no obligation of
reimbursement on part of owner; may remove improvement if can be done
w/o damage
18. Right to set-off improvements against damages he made against the
property
19. Right to administer when property is co-owned; if co-ownership cease –
usufruct of part allotted to co-owner belongs to usufructuary – not affected
20. Right to demand the increase in value of property if owner did not spend
for extraordinary repairs when urgent & necessary for preservation of thing

 Rights of naked owner

1. Alienate thing
2. Can’t alter form or substance
3. Can’t do anything prejudicial to usufructuary
4. Construct any works Y make any improvement provided it does not
diminish value or usufruct or prejudice right of usufructuary

 Obligations of usufructuary:

1. Pay expenses to 3rd persons for cultivation & production at beginning of

usufruct; whose who have right to fruits should reimburse expenses
incurred
2. Generally, usufructuary has no liability when due to wear & tear, thing
deteriorates, obliged to return in that state; except when there is fraud or
negligence, then he shall be liable
3. Before entering into usufructuary::

 Notice of inventory of property (appraisal of movables & description)

 Posting of security

1. not applicable to parents who are usufructuary of children except when

2  marriage contracted
nd

2. excused – allowed by owner, not required by law or no one will be

injured

 failure to give security: owner may demand that:

1. immovables be placed under administration

2. NI can be converted into registered certificates or deposited in bank
3. Capital & proceeds of sale of movables be invested in safe securities
4. Interest on proceeds or property under admin belong to usufructuary
5. Owner may retain property as administrator w/ obligation to deliver
fruits to usufructuary until he gives sufficient security
6. Effect of security is retroactive to day he is entitled to fruits

4.   Take care of property as a good father of family

5. Liable for negligence & fault of person who substitute him

6. If usufruct is constituted on animals – duty bound to replace dead
animals that die from natural causes or became prey; if all of them perish
w/o fault but due to contagious disease / uncommon event – deliver
remains saved; if perish in part due to accident – continue on remaining
portion; if on sterile animals – as if fungible – replace same kind & quality
7. Obliged to make ordinary repairs – wear & tear due to natural use of
thing and are indispensable for preservation; owner may make them at
expense of usufructuary – during existence of usufruct
8. Obliged to make expenses due to his fault; cannot escape by renouncing
usufruct
9. Pay legal interest from extraordinary expenses made by owner
10. Payment of expenses, charges & taxes affecting fruits
11. Payment of interest on amount paid by owner charges on capital
12. Obliged to notify owner of act of 3rd person prejudicial to rights of
ownership – he is liable if he does not do so for damages – as if it was
caused through his own fault
13. Expenses, cost & liabilities in suits brought with regard to usufructuary
– borne by usufructuary

 Obligations of owner

1. extraordinary expenses; usufructuary obliged to inform owner when

urgent is the need to make them
2. expenses after renunciation of usufruct
3. taxes & expenses imposed directly on capital
4. if property is mortgaged, usufructuary has no obligation to pay
mortgage; if attached, owner to be liable for whatever is lost by usufructuary
5. if property is expropriated for public use – owner obliged to either
replace it or pay legal interest to usufructuary of net proceeds of the same

 Extinguishment of usufruct

1. death of usufructuary – unless contrary intention appears

2. expiration of period of usufruct
3. merger of usufruct & ownership
4. renunciation of usufructuary – express
5. total loss of thing
6. termination of right of person constituting usufruct
7. prescription – use by 3rd person

 loss in part – remaining part shall continue to be held in usufruct

 usufruct cannot be constituted in favor of a town, Corp or assoc. for
more than 50 years
 usufruct constituted on immovable whereby a building is erected – &
building is destroyed – right to make use of land & materials
 if owner wishes to construct a new building – pay usufructuary the value
of interest of land & materials
 both share in insurance if both pays premium; if only owner – then
proceeds will go to owner only
 effect if bad use of the thing – owner may demand the delivery of and
administration of the thing with responsibility to deliver net fruits to
usufructuary
 at termination of usufruct:
 thing to be delivered to owner with right of retention for taxes &
extraordinary expenses w/c should be reimbursed
 security of mortgage shall be cancelled