Possession – What it is, definition and concept

Possession is the effective power over a thing by a person, without knowing if he is the true owner of that thing.

That is, possession is the possession of a thing, it is a legal phenomenon that is a fact, or you have or you do not have possession of something.

For example, if someone uses a car, that person is the owner of the car. But this does not mean that you own the car.

What the holder does is the exercise of powers that would correspond to the owner of a real right, but without necessarily being the true owner of this right.

Characteristics of possession

The main characteristics that define the figure of possession are:

  • This legal figure, which in turn is a fact, means that the law presumes that the people who own a thing are the true owners of that right.
  • Possession gives a person the appearance of being the owner of a real right.
  • It is regulated in the Civil Code.
  • Any natural or legal person can be a possessor, since a person does not establish himself as a possessor by fulfilling the requirements, but rather it is a factual situation.
  • Possession can be exercised by several possessors.
  • The legal system gives protection to possession, that is, it prohibits anyone (not even the one who has the legitimate right to possess by virtue of being an owner) from taking possession by force.
  • It can fall on things and rights susceptible of appropriation, such as easement.

Possession classes

There are different kinds of effective possession of a thing:

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  • Possession can be mediate or immediate.
    • The mediate is a possession of right and it is not a fact, that is, it is not an effective possession of a thing. For example, in a lease. The landlord is the owner of the rented apartment, although he is not actually owning it.
    • The immediate is a possession of fact, that is, of who has the actual thing under his power. Following the same example, in a lease, the tenant is the immediate owner of the rented apartment, because he has effective and real tenure.
  • Possession can be held by the true owner of the thing or not.
    • The possession held by the true owner makes the owner and the possessor of the thing coincide. That is, the person who has effective possession of the thing is also the owner of the real right. For example, when you inherit a car or dispose of the vehicle.
    • Possession held by a person who is not the owner. For example, a person inherits a car, but allows his brother to have the vehicle. The brother will have possession without being the true owner.
  • It can be in good faith or in bad faith.
    • In good faith: The person has the belief that he is the legitimate owner of the thing that he actually owns.
    • In bad faith: The person knows that he is not the legitimate owner of the thing that he actually owns.

Effects of possession

The main effects are:

  1. The presumption of ownership: The possessor has the presumption of the legal system that he is the true owner.
  2. The fruit can be acquired by the possessor in good faith.
  3. The holder, when he is not the owner of the thing and has to deliver it, has the right to reimbursement of the expenses incurred in the thing, such as conservation costs.
  4. Usucapión: This legal figure is the possibility of acquiring real rights through continued possession over time. Therefore, the person who owns without being the owner may become the legitimate owner through this figure of usucaption.
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