Possession is the holding of a thing or the enjoyment of a right, and it has different kinds and effects. Possession may be in one's own name or in the name of another; and it may be in the concept of an owner (holding the thing as if it were one's own) or in the concept of a mere holder (acknowledging ownership in another, such as a lessee or borrower). Possession may also be in good faith (the possessor is unaware of any flaw in their title) or in bad faith. These distinctions carry important effects: a possessor in the concept of owner may acquire ownership by prescription, while a mere holder cannot; a possessor in good faith is entitled to the fruits received before legal interruption and to reimbursement of certain expenses, while a possessor in bad faith is not. The law also presumes good faith, presumes that a possessor holds in the concept of owner, and presumes continuity and just title in favor of the possessor, unless the contrary is proven. Possession is protected in itself, so even a possessor can be maintained in or restored to possession against one who disturbs it unlawfully.
Kinds of Possession
- In one's own name or in the name of another;
- In the concept of owner (as if it were one's own) or as a mere holder (e.g., lessee, borrower); and
- In good faith (unaware of a flaw) or bad faith.
The Effects
- A possessor in the concept of owner can acquire ownership by prescription; a mere holder cannot;
- A possessor in good faith keeps the fruits received before interruption and is reimbursed certain expenses; a bad-faith one is not.
The Presumptions
The law presumes good faith, presumes possession in the concept of owner, and presumes continuity and just title — unless the contrary is proven. Possession is protected in itself, so a possessor can be maintained or restored against unlawful disturbance.
Practical Takeaways
- Possession's kind (owner vs. holder, good vs. bad faith) drives its effects;
- Only a possessor in the concept of owner can prescribe;
- The law presumes good faith and owner-concept possession.
Frequently Asked Questions
What are the kinds of possession? Possession may be in one's own name or another's; in the concept of an owner or as a mere holder; and in good faith or bad faith, each with different legal effects.
Why does the concept of possession matter? A possessor in the concept of owner may acquire ownership by prescription, while a mere holder cannot. This distinction determines whether long possession can ripen into ownership.
What does the law presume about a possessor? Good faith, possession in the concept of owner, and continuity and just title, unless the contrary is proven.
Is possession itself protected? Yes. Possession is protected in itself, so even a possessor can be maintained in or restored to possession against one who unlawfully disturbs it.
This commentary is for general informational purposes only and does not constitute legal advice. For guidance specific to your situation, please consult a licensed attorney.
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