523 - 612

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

Definition of Possession
(a) Etymological derived from pos sedere (to be settled) or posse.
(b) Legal the holding or control of a thing (this is possession proper); or the
exercise of a right. (This is only quasi-possession since a right is incorporeal
.)
Is Possession a Fact or a Right?
It is really a fact (since it exists); but from the moment it exists, certain co
nsequences follow, thus making possession also a right.
Viewpoints of Possession
(a) Right TO possession (jus possidendi) This is a right or incident of ownershi
p.
(b) Right OF possession (jus possessionis) This is an independent right of itsel
f, independent of ownership.
Degrees of Possession
(a) Mere holding or having, without any right whatsoever. (This is the grammatic
al degree). (Example: possession by a thief.)
(b) Possession with a juridical title, but not that of an owner. (Example: that
of a lessee, pledgee, depositary.) (This is called juridical possession.)
(c) Possession with a just title, but not from the true owner (This is called re
al possessory right.) (Example: A in good faith buys an automobile from B who de
livers same to A, and who merely pretended to be the owner.)
(d) Possession with a title of dominium, that is, with a just title from the own
er. (This is really ownership or possession that springs from ownership.)
Requisites or Elements of Possession
(a) There must be a holding or control (occupancy, or taking or apprehension) of
a thing or a right. (This holding may be actual or constructive.)
(b) There must be a deliberate intention to possess (animus possidendi). This is
a state of the mind.
(c) The possession must be by virtue of ones own right. (This may be because he i
s an owner or because of a right derived from the owner such as that of a tenant
.) HENCE, an agent who holds is not truly in possession; it is the principal who
possesses thru the agent.
Holding or Detention in relation to Physical Possession
Holding or detention may be either actual or constructive occupation. Possession
in the eyes of the law does not mean that a man has to have his feet on every s
quare meter of the ground before it can be said that he is in possession. It is
sufficient that petitioner was able to subject the property to the action of his
will. It is, however, essential in constructive possession that the property be
not in the adverse possession of another.
Classes of Possession
(a) In ones own name or in that of another. (Art. 524).
(b) In the concept of owner (en concepto de dueno) and in the concept of holder.
(Art. 525).
(c) In good faith (bona fide) or in bad faith. (mala fide).
Ownership is Different from Possession
Ownership is different from possession. A person may be declared the owner, but
he may not be entitled to possession. The possession (in the concept of holder)
may be in the hands of another, such as a lessee or a tenant. A person may have
introduced improvements thereon of which he may not be deprived without due hear

ing. He may have other valid defenses to resist surrender of possession. Hence,
a judgment for ownership does NOT necessarily include possession as a necessary
incident.
Art. 524. Possession may be exercised 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 an agent possesses for the principal (by virtue of agreeme
nt).
(b) Necessary as when a mother possesses for a child still in the maternal womb.
[NOTE: Here the mother does not possess the child; she possesses FOR him.].
(c) Unauthorized (This will become the principals possession only after there has
been a ratification without prejudice to the effects of negotiorum gestio.)
[NOTE: Even a servant, guard, or laborer may possess in anothers name see Alguer
and Castan.
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 t
o keep or enjoy it, the ownership pertaining to another person.
Concept of Owner
Possessor in the concept of an owner is one who, whether in good or in bad faith
, CLAIMS to be, and ACTS as if he is, the owner. He recognizes no title of owner
ship in another, with respect to the property involved. Whether he is in good fa
ith or bad faith is immaterial.
This is the possession that may ripen into ownership. This is also referred to a
s adverse possession.
Concept of Holder
Here I recognize another to be the owner.
Specific Examples of Possession in the Concept of Holder
(a) that of the tenant;
(b) that of the usufructuary;
(c) that of the depositary;
(d) that of the bailee in commodatum.
[NOTE: The possession is of the property concerned. Regarding their respective r
ights (the lease right, the usufruct, the right to safeguard the thing, the righ
t to use the thing), all are possessed by them, respectively, in the concept of
owner.
HENCE, we distinguish between:
1) possession of the THING itself.
2) possession of the RIGHT TO ENJOY the thing (or benefit from it).].
Art. 526. He is deemed a possessor in good faith who is not aware that there exi
sts in his title or mode of acquisition any flaw which invalidates it.
He is deemed a possessor in bad faith who possesses in any case contrary to the
foregoing.
Mistake upon a doubtful or difficult question of law may be the basis of good fa
ith.
Test of Good Faith

Good faith or lack of it is in the last analysis a question of intention. It is

a fact which is intangible, and is evidenced by external signs. The belief must
be a reasonable, not capricious (changeable), one.
Q: If a buyer knows at the time of purchase that the lot he is acquiring, is in
the possession of a person other than the seller, is he necessarily a buyer in b
ad faith?
A: He is not necessarily a buyer in bad faith. After all, a possessor is not nec
essarily the owner of the property possessed. Besides, he may be possessing only
a portion of the land involved, or his possession may be with the knowledge and
tolerance of the owner.
Possessor in Bad Faith (mala fide) Defined | Requirement:
One who is not in good faith.
He must act with the diligence of a prudent man cannot be a purchaser in good fa
ith
Other examples:
Purchaser from a suspected thief.
Purchaser at a public auction sale of property subject to litigation or to third
-party claim.
Purchaser from a person with a forged title or who is NOT the registered owner
Squatters on church land who know it to be temporarily abandoned because of war.
A tenant who continues to occupy the property leased after the period of lease h
as expired, and has already been asked to leave
A purchaser from a tenant of the property, the purchaser knowing that the proper
ty belonged to another.
If a person is aware of the defects of his predecessors title, should he be consi
dered in good faith or in bad faith?
While the law speaks of his title, not that of the predecessor, still the fact r
emains that he is not allowed to get from a person who is not the owner. Therefo
re, we should consider him in bad faith unless of course he has valid reasons to
believe that his own title is good.
Effect of Erroneous Final Judgment
Nevertheless, since the wrong decision was not appealed, and had therefore becom
e final, the decision remains and the landowner must reimburse if he wants the o
uster. (Res Judicata)
Mistake on a Doubtful or Difficult Question of Law
May be the basis of good faith - provided that such ignorance is not gross and t
herefore inexcusable.
Bad Faith Is Personal
Just because a person is in bad faith (knows of the defect or flaw in his title)
does not necessarily mean that his successors-in-interest are also in bad faith
. As a matter of fact, a child or heir may even be presumed in good faith, notwi
thstanding the fathers bad faith.
Art. 527. Good faith is always presumed, and upon him who alleges bad faith on t
he part of a possessor rests the burden of proof.
Presumption of Good Faith | Reason
The presumption of innocence is given because every person should be presumed ho
nest till the contrary is proved.
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.

Q: What possessor should do when the facts show?
A: What the possessor should do upon receipt of the letter would be to investiga
te; and if he does not, but is later on defeated, bad faith should be counted no
t from the time of summons, but from the time he first received the letter. Alth
ough receipt of summons will ordinarily produce a conversion from good faith to
bad faith, it may be possible that a possessor will still be convinced of the ri
ghteousness of his cause, thus preserving his original good faith.
Q: Is the buyer a possessor and builder in bad faith despite the knowledge of bo
th parties that the sale was illegal, makes and builds improvements on a propert
y?
A: Both are in a sense in pari delicto. However the buyer continued to act in ba
d faith when he made such improvements. He should consequently lose whatever he
had built, planted, or sowed in bad faith, without right to indemnity.
Note: When a contract of sale is void, the possessor is entitled to keep the fru
its during the period for which it held the property in good faith, which good f
aith of the possessor ceases when an action to recover possession of the propert
y is filed against him and he is served summons therefor.
Art. 529. It is presumed that possession continues to be enjoyed in the same cha
racter in which it was acquired, until the contrary is proved.
Some presumptions regarding possession
Good faith is always presumed (Art. 527)
Continuity of the character of the possession (Art. 529)
Non-interruption of possession - (Art. 533).
Presumption of just title - (Art. 541).
Non-interruption of possession of property unjustly lost but legally recovered (
Art. 561).
Possession during intervening period (Art. 1138[2]).
Possession of movables with real property (Art. 542).
Exclusive possession of common property (Art. 543).
Art. 530. Only things and rights which are susceptible of being appropriated may
be the object of possession.
The following cannot be appropriated and hence cannot be possessed:
Property of public dominion,
Res communes,
Easements (if discontinuous or non-apparent),
things specifically prohibited by law.
Res Nullius
Res nullius (abandoned or ownerless property) may be possessed, but cannot be ac
quired 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 ex
ercise 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
.
Examples of the proper acts and legal formalities established for acquiring such
right:
succession,
donation,

execution of public instruments; or

the possession by a sheriff by virtue of a court order.
Essential Requirements for Possession
(a) the corpus (or the thing physically detained).
(b) the animus or intent to possess (whether evidenced expressly or impliedly).
Rule on 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 possesse
d by another.
Art. 532. Possession may be acquired by the same person who is to enjoy it, by h
is legal representative, by his agent, or by any person without any power whatev
er; but in the last case, the possession shall not be considered as acquired unt
il 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.
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)
Essential Requisites
For personal acquisition
1) intent to possess
2) capacity to possess
3) object must be capable of being possessed
Thru an 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
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 (The possession although cured only by the express or
implied ratification should be regarded as having a RETROACTIVE effect.)
Art. 533. The possession of hereditary property is deemed transmitted to the hei
r without interruption and from the moment of the death of the decedent, in case
the inheritance is accepted. One who validly renounces (or is incapacitated to
inherit) an inheritance is deemed never to have possessed the same.
Art 533 is also known as
Acquisition of Possession thru Succession Mortis Causa
Q: A died. B immediately occupied and possessed the property left by A. C now al
leges that he is the heir of A, and that he (C) therefore, is entitled to get po
ssession of the property. What should C do?
A: C must prove the ownership over the property by A, his alleged predecessor-in
-interest; otherwise B, the present possessor, has in his favor the legal presum
ption that he (B) holds possession by reason of a sufficient title, and he canno
t be forced to show it. If C can prove As right, he will be considered owner and
possessor from the time of As death.
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 awar
e of the flaws affecting it; but the effects of possession in good faith shall n
ot benefit him except from the date of death of the decedent.
Art. 535. Minors and incapacitated persons may acquire the possession of things;
but they need the assistance of their legal representatives in order to exercis
e the rights which from the possession arise in their favor.
Persons Referred to in the Article
(a) unemancipated minors
(b) minors emancipated by parental concession or by marriage (in certain cases,
like possession of real property)
(c) other incapacitated persons like
1) the insane
2) the prodigal or spendthrift
3) those under civil interdiction
4) deaf-mutes (in certain cases) (in general, those laboring under restr
ictions on capacity to act).
Q: May minors and other incapacitated persons acquire property or rights by pres
cription?
A: Yes, either personally or thru their parents, guardians, or legal representat
ives. (Art. 1107)
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 a
n action or a right to deprive another of the holding of a thing, must invoke th
e aid of the competent court, if the holder should refuse to deliver the thing.
Modes Thru Which Possession Cannot Be Acquired
1. thru FORCE or INTIMIDATION as long as there is a possessor who objects theret
o ( and even if the objection ceased)
2. thru mere TOLERANCE (permission).
3. thru clandestine, secret possession (or possession without knowledge for this
would be possession by stealth, and not open or public. (can be with knowledge
of the owner)
How to Recover Possession
1. First, he should request the usurper to give up the thing and
2. if the latter refuses, the former should invoke the aid of the proper and com
petent court (that which has jurisdiction over the subject matter and the partie
s).
Q: T or F: An action of forcible entry or unlawful detainer may be brought even
against the owner.
A: T
Art. 537. Acts merely tolerated, and those executed clandestinely and without th
e knowledge of the possessor of a thing, or by violence, do not affect possessio
n.
Tolerance is permission, as distinguished from abandonment. Whether there was pe
rmission, or there has been an abandonment, is a question of fact and must be pr
oved by clear and convincing evidence.
Clandestine Possession
For clandestine possession to affect the owners possession, the possession must a
lso be unknown to the owner.
Possession by Force or Violence

The force may be:

1) actual or merely threatened;
2) done by possessor himself or by his agent;
3) done against the owner or against any other possessor or against the owners re
presentative
4) done to oust possessor; or if occupied during the latters absence, done to pre
vent his getting back the premises.
Meaning of 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 th
erefore
1) still entitled to the benefits of prescription;
2) still entitled to the fruits;
3) still entitled as possessor for all purposes favorable to his possess
ion.
c) The intruder cannot acquire the property by prescription.
Art. 538. Possession as a fact cannot be recognized at the same time in two diff
erent personalities except in the case of co-possession. 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 poss
ession are the same, the one who presents a title; and if all these conditions a
re equal, the thing shall be placed in judicial deposit pending determination of
its possession or ownership through proper proceedings.
Possession as a fact means:
Actual possession.
General Rule Regarding Possession as a Fact
GR: Possession as a fact cannot be recognized at the same time in two different
personalities.
EXCPT:
(a) co-possessors
(b) possession in different concepts or different degrees
Rules or Criteria to be Used in Case of Conflict or Dispute Regarding Possession
or Preference of Possession
(a) present possessor shall be preferred (should not be by force)
(b) if both are present, the one longer in possession
(c) if both began to possess at the same time, the one who present (or has) a ti
tle
(d) if both present a title, the Court will determine. (Meantime, the thing shal
l be judicially deposited.)
Art. 539. Every possessor has a right to be respected in his possession; and sho
uld he be disturbed therein he shall be protected in or restored to said possess
ion by the means established by the laws and the Rules of Court.
A possessor deprived of his possession through forcible entry may within ten day
s 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 injunc
tion to restore him in his possession. The court shall decide the motion within
thirty (30) days from the filing thereof.
Right to be Respected in Possession General Nature
(a) right of a person to be respected in his possession (whether in the concept
of holder or owner) (first effect of possession).

(b) protection in said right or restoration to said possession thru legal means
(c) the writ of preliminary mandatory injunction
An adverse possession of property by another is not an encumbrance in law, and d
oes not contradict the condition that the property be free from encumbrance. Lik
ewise, the adverse possession is not a lien for a lien signifies a security for
a claim.
Reasons for Protection of Possession:
1) Possession is very similar to ownership, and as a matter of fact modifies own
ership.
2) Possession almost invariably gives rise to the presumption that the possessor
is the owner.
Rule on squatters
Squatter have no possessory rights of any kind against the owner of the land int
o which he has intruded. His occupancy of the land is merely tolerated by the ow
ner. Thus, there is an implied promise on his part to vacate upon demand.
Reasons for requiring legal means;
(a) to prevent spoliation or a disregard of public order
(b) to prevent deprivation of property without due process of law;
(c) to prevent a person from taking the law into his own hands.
T or F: The owner should go to court, and not eject the unlawful possessor by fo
rce.
A: T
T or F: A tenant illegally forced out by the owner-landlord may institute an act
ion for forcible entry even if he had not been paying rent regularly.
A: T
Writ of Preliminary Mandatory Injunction
As a rule, injunction cannot substitute for the other, actions to recover posses
sion. This is because in the meantime, the possessor has in his favor, the presu
mption of rightful possession, at least, till the case is finally decided.
The exception, of course, is a very clear case of usurpation.
Only in cases of extreme urgency.
Requirement: Notice and hearing.
Requisites for the Issuance of the Writ:
1. Forcible entry cases (in the original court) file within 10 days from the tim
e the complaint for forcible entry is filed (not from the time the dispossession
took place).
2. Ejectment (unlawful detainer cases) in the CFI (RTC) or appellate court (Cour
t of Appeals) file within 10 days from the time the appeal is perfected (that is
, from the time the attorneys are notified by the Court of the perfection of the
appeal), only if:
a) the lessees appeal is frivolous or dilatory; or
b) the lessors appeal is prima facie meritorious.
Art. 540. Only the possession acquired and enjoyed in the concept of owner can s
erve as a title for acquiring dominion.
For prescription to set in, the possession must be adverse, public and to the ex
clusion of all.
The following cannot therefore acquire ownership by prescription (as long as the

y remain such mere possessors in the concept of holder):

(a) Lessees. or those merely permitted to occupy.
(b) Trustees.
1. parents over the properties of their unemancipated minor children or
insane children
2. husband and wife over each others properties, as long as the marriage
lasts, and even if there be a separation of property which had been agreed upon
in a marriage settlement or by judicial decree.
(c) Antichretic creditors.
(d) Agents.
(e) Attorneys
(f) Depositaries.
(g) Co-owners (unless the co-ownership is clearly repudiated by unequivocal acts
communicated to the other co-owners). Repudiation does not allow for minors or
the insane.
Payment of Land Taxes Usefulness
While tax declarations and receipts are NOT conclusive evidence of ownership, ye
t, when coupled with proof of actual possession, tax declarations and receipts a
re strong evidence of ownership.
Art. 541. A possessor in the concept of owner has in his favor the legal presump
tion that he possesses with a just title and he cannot be obliged to show or pro
ve it.
Requirements to raise the disputable presumption of ownership
(a) One must be in possession (actual or constructive).
(b) The possession must be in the concept of owner (not mere holder).
Reasons for the Presumption
(a) presumption that one is in good faith or that one is innocent of wrong.
(b) inconvenience of carrying proofs of ownership around.
The Kinds of Titles
(a) True and Valid Title There was a mode of transferring ownership and t
he grantor was the owner.
(b) Colorable Title (Titulo Colorado) That title where, although there was a mod
e of transferring ownership, still something is wrong, because the grantor is NO
T the owner.
(c) Putative Title (Titulo Putativo) - That title where although a person belie
ves himself to be the owner, he nonetheless is not, because there was no mode of
acquiring ownership.
Art. 542. 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.
Applicability of the Article
(a) whether the possessor be in good faith or bad faith
(b) whether the possession be in ones own name or in anothers
(c) whether the possession be in concepto de dueno or in the concept of holder.
Q: Does this Article include rights?
A: No.
Art. 543. Each one of the participants of a thing possessed in common shall be d
eemed to have exclusively possessed the part which may be allotted to him upon t
he division thereof, for the entire period during which the co-possession lasted
. 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 civi

l interruption, the Rules of Court shall apply.

How is Civil Interrruption effected?
(a) Civil interruption is produced by judicial summons to the possessor.
(b) Judicial summons shall be deemed not to have been issued, and shall not give
rise to interruption:
1) if it should be void for lack of legal solemnities;
2) if the plaintiff should desist from the complaint or should allow the
proceedings to lapse;
3) if the possessor should be absolved from the complaint.
Art. 544. A possessor in good faith is entitled to the fruits received before th
e possession is legally interrupted.
Natural and industrial fruits are considered received from the time they are gat
hered or severed.
Civil fruits are deemed to accrue daily and belong to the possessor in good fait
h in that proportion.
Reason for 1st paragraph:
Justice demands that the fruits be retained by the possessor who thought that he
was really the owner of the property, and who, because of such thought had regu
lated his daily life, income, and expenses by virtue of such fruits. Moreover,
the possessor should be rewarded for having contributed to the INDUSTRIAL WEALTH
.
How is possession legally interrupted?
This occurs from the moment defects in the title are made known to the possessor
, by
(1) extraneous evidence or
(2) by the filing of an action in court.
When Natural and Industrial Fruits are Considered Received