TITLE V.

POSSESSION  Where the actual possessor has no valid right over the
property enforceable against the owner thereof, the
Chapter 1 surrender of the possession to the adjudged owner
POSSESSION AND THE KINDS THEREOF should be included in the judgment.

Art. 523. Possession Defined Art. 524. To Whom Possession May Be Exercised?
Possession is the holding of a thing or the enjoyment of a Possession may be exercised:
right. 1. in one’s own name; (possessor-owner)
2. in name of another (ex. agent)
Viewpoints of Possession
1. Right TO possession (jus possidendi) – a right incident of Q: Who is in actual possession of a rented parcel of land?
ownership (ex. ownership of a house) A: The lessor, through the tenant, is in the actual possession
2. Right OF possession (jus possessionis) – an independent of the land. Tenant is in actual possession in the concept of
right of itself, independent of ownership (ex. possession holder.
of house through rent)
Possession in Another’s Name
Degree of Possession 1. Voluntary – as when an agent possesses for the principal
1. Mere holding or having, without any right (by virtue of agreement)
2. Juridical possession – possession with a juridical title, 2. Necessary – as when a mother possesses for a child still
but not that of an owner (ex. lessee, pledgee, depositary) in the maternal womb
3. Real possessory right – possession with a just title, but 3. Unauthorized – this will become the principal’s
not from the true owner. possession only after there has been ratification without
4. Ownership – possession with a title of dominium (with a prejudice to the effects of negotiorum gestio.
just title from the owner)
Right of the Landlord to Bring Suit vs. Intruder
Requisites of Possession [HIR] Q: If a tenant is ousted by an intruder, the tenant is
1. Holding or control of a thing or a right. undoubtedly given the right to bring an action of forcible
2. Deliberate Intention to possess entry. Now then, suppose it is the landlord himself who
3. Possession must be by virtue of one’s own Right institutes the suit against the intruder, would the action
prosper?
Holding or Detention
 May either be actual or constructive occupation. A: YES, for after all, the landowner was really in actual
 Possession in the eyes of the law does not mean that a possession, through the tenant. There is a danger he may
man has to have his feet on every square meter of eventually lose his possession over the same, and suffer
ground before it can be said that he is in possession. serious inconvenience.
 Essential in constructive possession: property be not in
the adverse possession of another It should be noted also that the tenant is required to give
notice to the owner of any usurpation which a stranger may
Classes of Possession do. (Art. 1673, NCC)
1. In one’s own name or in that of another (Art. 524)
2. In the concept of owner (en concepto de dueno) and in Query Re Cursory Visits to Object
the concept of holder (Art. 525)  The facts that one visits a certain parcel of land once in a
3. In Good Faith (bona fide) or in Bad Faith (mala fide) (Art. while and declares for taxation purposes the fact that the
526) land belongs to him, does NOT necessarily mean that he
is in POSSESSION of the land. These facts, by themselves,
Ownership do NOT show possession.
A thing pertaining to one person is completely subjected to  However, the holding of possessory information is
his will in a manner not prohibited by law and inconsistent considered evidence of possession under Art. 394 of the
with the rights of others. Spanish Mortgage Law.

Possession vs. Ownership Case

 A person may be declared the owner, but he may not be De Luna v. CA, et al., G.R. No. 94490, 6 August 1992
entitled to possession.  In ejectment cases, the only issue to be resolved is who is
 The possession in the concept of holder may be in the entitled to the physical/material possession of the
hands of another (lessee/tenant). premises, or possession de facto, independent of any
 A judgment for ownership does NOT necessarily include claim of ownership that either party may set forth in
possession as a necessary incident. their pleadings.
 If the petitioner can prove prior possession in himself, he Republic of the Phils., BFD v. IAC and Rama, G.R. No. 69138
may recover such possession even from the owner  Good faith which entitles the possessors to necessary
himself. If he has in his favor priority of time, he has the expenses with right of retention until reimbursement is
security that entitles him to stay on the property until he explained in the case:
is lawfully ejected by a person having a better right by  There is no showing that plaintiffs are not purchasers in
either accion publiciana or accion reivindicatoria. GF. As such, they have reason to rely on the indefeasible
character of their certificates.
Art. 525. Concept of Owner or Holder
The possession of things or rights may be had in one of two Reyes v. CA, G.R. No. 110207, 11 July 1996
concepts:  Petitioners could not have been possessors in GF of the
1. in the concept of owner, or subject parcel of land considering the finding that at the
2. in that of the holder of the thing or right very inception, they forged the Deed of Extrajudicial
to keep or enjoy it, the ownership pertaining to another Partition and Settlement which they claim to be the basis
person. for their just title.
 Having forged the Deed and simulated the signatures of
Concept of Owner (adverse possession) respondents, petitioners are in BF.
 A possessor in the concept of an owner is one who,
whether in GF or BF, claims to be, and acts as if he is the Possessor in Bad Faith (mala fide)
owner. Examples:
 He thus recognizes no title of ownership. a) A buyer of registered land who fails to act with the
 May ripen into ownership. diligence of a prudent man cannot be a purchaser in GF.
b) Purchaser from a suspected thief.
Concept of Holder c) Purchaser at a public auction sale of property subject to
 Holder recognizes another to be the owner. litigation or to third-party claim.
 Examples: that of the tenant; usufructuary; depositary; d) Purchaser from a person with a forged title.
bailee in commodatum. e) Squatters on church land who know it to be temporarily
abandoned because of war.
Art. 526. Possession in Good Faith or Bad Faith f) A tenant who continues to occupy the property leased
after the period of lease has expired.
1. He is deemed a possessor in GF who is not aware that
g) A purchaser from a tenant of the property, the purchaser
there exists in his title or mode of acquisition any flaw
which invalidates it. knowing that the property belonged to another.
h) Persons who take possession of hereditary estate of a
2. He is deemed a possessor in BF who possesses in any
relative and deliberately excluded from the estate the
case contrary to the foregoing.
child of the deceased.
3. Mistake upon a doubtful or difficult question of law may
be the basis of GF. i) While one who buys from the registered owner does
NOT need to look behind the certificate of title, one who
buys from one who is NOT the registered owner is
Possession in Good Faith or Bad Faith
expected to examine not only the certificate of title but
 When the law distinguishes GF and BF, there must be a
flaw. If aware of it, the possessor is in BF; if NOT aware, all the factual circumstances necessary for him to
determine if there are any flaws in the title of the
he is in GF. If NO flaw at all, the article should not apply.
transferor, or in his capacity to transfer the land.
Possessor in Good Faith (bona fide) j) An attorney at law who purchased land in QC from a
seller who informed him that although the land had no
 One who is NOT aware that there exists in his TITLE or
Torrens Title, the seller nonetheless was willing to bind
MODE of acquisition any flaw which invalidates it.
himself to issue a clear title to the land.
 GF or lack of it is in the last analysis a question of
intention. It is an intangible fact, and is evidenced by k) A buyer of land already in the peaceable possession of a
person other than the seller, who does not inquire into
external signs. The belief must be reasonable.
the status of the land or the title of the seller of the
Q: If a buyer knows at the time of purchase that the lot he is property should be considered one in BF and must suffer
acquiring is in the possession of a person other than the the consequences of the risk taken.
seller, is he necessarily a buyer in BF?
Mistake on a Doubtful/Difficult Question of Law
A: NO, he is NOT necessarily a buyer in BF. A possessor is not  May be the basis of GF.
 Ignorance of the law excuses no one but error in the
necessarily the owner of the property possessed. The rights
application of the law, in the legal solutions arising from
of a mere possessor are unavailing as against a seller who is
such application, and the interpretation of doubtful
armed with a Torrens title over the property involved.
doctrine can still make a person a transgressor, violator
or possessor in GF; based on error of fact.
Case
Art. 527. Presumption of Good Faith the intervening time, unless there is proof to the
Good faith is always presumed, and upon him who alleges contrary. (Art. 1138; 2)
bad faith on the part of a possessor rests the burden of proof. g) Possession of Movables with Real Property – The
possession of real property presumes that of the
Art. 528. When Possession in Good Faith is converted to movables therein, so long as it is not shown or proved
Possession in Bad Faith that they should be excluded. (Art. 542)
Possession acquired in good faith does not lose this character h) Exclusive Possession of Common Property – Each one of
except in the case and from the moment facts exist which the participants of a thing possessed in common shall be
show that the possessor is not unaware that he possesses the deemed to have exclusively possessed the part which
thing improperly or wrongfully. may be allotted to him upon the division thereof, for the
Possession in GF  Possession in BF entire period during which the co-possession lasted. (Art.
a) From the moment facts exist showing the possessor’s 543)
knowledge of the flaw, from that time should he be
considered a possessor in BF. Art. 530. What May or May Not Be Possessed?
Only things and rights which are susceptible of being
When Bad Faith Begins appropriated may be the object of possession.
 May begin either from the receipt of judicial summons
or even before such time as when a letter is received Hence, only PROPERTY may be the object of possession.
from the true owner asking the possessor to stop
planting on the land because somebody else owns it. Res Nullius
 What the possessor should do upon receipt of the letter  Abandoned or ownerless property which may be
would be to investigate; and if he does not, but is later possessed, but cannot be acquired by prescription.
on defeated, BF should be counted from the time he first  REASON: Prescription presupposed prior ownership in
received the letter. another.
 Although receipt of summons will ordinarily produce a  However, res nullius may be acquired by occupation.
conversion from GF to BF, it may be possible that a
possessor will still be convinced of the righteousness of Chapter 2
his cause, thus preserving his original GF. ACQUISITION OF POSSESSION
 This is why if he originally was in GF, he would not be
responsible in case of loss through fortuitous event, even Art. 531. How is Possession Acquired? (BAR)
if the loss should occur during trial. 1. By material occupation (detention) of a thing or the
exercise of a right (quasi-possession).
Art. 529. Continuity of the Character of the Possession a) Constitutum possessorium exists when a person
It is presumed that possession continues to be enjoyed in the who possessed property as an owner, now possesses
same character in which it was acquired, until the contrary is it in some other capacity, as that of lessee or
proved. depositary.
b) Traditio brevi manu exists when a person who
Some Presumptions Regarding Possession possessed property not as an owner, now possesses
a) Good Faith – Good faith is always presumed (Art. 527) it as owner.
b) Continuity of Character of Possession – Art. 529 2. By subjection to our will
c) Non-Interruption of Possession – The possession of a) Traditio longa manu – delivery by the long hand;
hereditary property is deemed transmitted to the heir delivery by consent (mere agreement)
without interruption, and from the moment of the death b) Traditio simbolica – delivery of keys
of the decedent, in case the inheritance is accepted. One 3. By constructive possession – proper acts and legal
who validly renounces an inheritance is deemed never to formalities:
have possessed the same. (Art. 533) a) succession
d) Presumption of Just Title – A possessor in the concept of b) donation
owner has in his favor the legal presumption that he c) execution of public instruments
possesses with just title, and he cannot be obliged to d) through possession by virtue of a court order
show or prove it. (Art. 541)
e) Non-Interruption of Possession or Property Unjustly Essential Requirements for Possession
Lost but Legally Recovered – One who recovers a) Corpus – thing physically detained
possession unjustly lost, shall be deemed for all purposes b) Animus – intent to possess whether evidence expressly
which may redound to his benefit, to have enjoyed it or impliedly
without interruption. (Art. 561)
f) Possession during Intervening Period – It is presumed, Constructive Possession of Land
that the present possessor who was also the possessor at  If an entire parcel of land is possessed under claim of
previous time, has continued to be in possession during ownership, there is constructive possession of the entire
 parcel, UNLESS a portion thereof is adversely possessed In the second case, the Rules on Agency in Title X of this
by another. Book shall be applicable.
 The area must however be within reasonable limits – it is
not enough to merely plant a sign. Art. 533. Succession Mortis Causa
The possession of hereditary property is deemed transmitted
Art. 532. Acquisition of Possession from the Viewpoint of to the heir without interruption, and from the moment of the
Who Possesses death of the decedent, in case the inheritance is accepted.
Possession may be acquired by the same person who is to One who validly renounces an inheritance is deemed never to
enjoy it, by his legal representative, by his agent, or by any have possessed the same.
person without any power whatever: but in the last case, the
possession shall not be considered as acquired until the Time of Acquisition of Possession
person in whose name the act of possession was executed a) Heir accepts – from the moment of death since there is
has ratified the same, without prejudice to the juridical no interruption. Moreover, the possession of the
consequences of negotiorum gestio in a proper case. deceased should be added to the possession of the heir.
(Art. 1138 [1])
Acquisition of Possession from the Viewpoint of Who b) Heir refuses (incapacitated to inherit) – he is deemed
Possesses (and the Requisites) NEVER to have possessed the same.
1. Personal acquisition
a. Intent to possess Art. 534. Effects of Acquisition of Possession through
b. Capacity to possess Succession
c. Object must be capable of being possessed On who succeeds by hereditary title shall not suffer the
2. Through an authorized person consequences of the wrongful possession of the decedent, if
a. Intent to possess for principal it is not shown that he was aware of the flaws affecting it; but
b. Authority or capacity to possess for another the effects of possession in good faith shall not benefit him
c. Principal has intent and capacity to possess except from the date of death of the decedent.
3. Through an unauthorized person (negotiorum gestio)
a. Intent to possess for another (the principal) Effects of Acquisition of Possession through Succession
b. Capacity of principal to possess  If the father/decedent was in BF, it does NOT necessarily
c. Ratification by principal mean that the son was also in BF. The son is presumed to
be in GF.
Negotiorum Gestio (Art. 2144)  However, since the father was in BF, the consequences of
Whoever voluntarily takes charge of the agency or the GF of the son should be counted only from the date
management of the business or property of another, without of the decedent’s death.
any power from the latter, is obliged to continue the same  If father had been in GF, Art. 534 is NOT applicable.
until the termination of the affair and its incidents, or to
require the person concerned to substitute him, if the owner Prescription (see Example on page 493, Paras)
is in a position to do so. This juridical relation does not arise  EOP requires 30 years; OP requires 10 years (3:1)
in either of these instances:  3-yr possession in BF = 1-yr possession in GF
(1) When the property or business is not neglected or  THEREFORE, 1 year + 9 years = 10 years
abandoned;
(2) If in fact the manager has been tacitly authorized by Article 1138. In the computation of time necessary for
the owner. prescription the following rules shall be observed:
(1) The present possessor may complete the period
In the first case, the provisions of articles 1317, 1403, No. 1, necessary for prescription by tacking his possession to
and 1404 regarding unauthorized contracts shall govern. that of his grantor or predecessor in interest;
(2) It is presumed that the present possessor who was also
Article 1317. No one may contract in the name of another the possessor at a previous time, has continued to be in
without being authorized by the latter, or unless he has by possession during the intervening time, unless there is
law a right to represent him. proof to the contrary;
(3) The first day shall be excluded and the last day included.
Article 1403. The following contracts are unenforceable,
unless they are ratified: Art. 535. Acquisition of Possession by Minors and
(1) Those entered into in the name of another person by one Incapacitated Persons
who has been given no authority or legal representation, or
Minors and incapacitated persons may acquire the
who has acted beyond his powers;
possession of things; but they need the assistance of their
legal representatives in order to exercise the rights which
Article 1404. Unauthorized contracts are governed by article
from the possession arise in their favor.
1317 and the principles of agency in Title X of this Book.
Nature of their Possession  But where a person occupies another’s land with the
Possession by them is allowed only in those matters where latter’s permission (tolerance), the occupier, no matter
they have the capacity to act and NOT possession where how long he may remain, can never acquire ownership,
juridical acts are imperative like the possession of land the because he never had possession.
ownership of which he desires to test in court; intervention of
legal representatives is needed. Cases and Doctrines on Tolerance
 If a person squats on another’s property because of
Acquisition by Prescription “tolerance,” the latter may sue for ejectment.
 Minors and other incapacitated persons may acquire  A squatter’s possession, when there is no violence, is by
property or rights by prescription, either personally or mere tolerance. The one-year period for filing an
through their parents, guardians, or legal unlawful detainer case against him should be counted
representatives. from the time the latest demand to vacate is made,
unless in the meantime an accion publiciana is
Art. 536. Possession cannot be acquired through Force, instituted.
Tolerance, and Secrecy  The policy of social justice is not intended to
In no case may possession be acquired through force or countenance wrongdoing simply because it is committed
intimidation as long as there is a possessor who objects by the underprivileged. At best, it may mitigate the
thereto. He who believes that he has an action or a right to penalty but it certainly will not condone the offense.
deprive another of the holding of a thing, must invoke the aid  For social justice cannot condone the violation of the law
of the competent court, if the holder should refuse to deliver nor does it consider that very wrong to be a justification
the thing. for priority in the enjoyment of a right.

Possession Cannot Be Acquired: Art. 538. General Rule Re Possession as a Fact

a) Through FORCE or INTIMIDATION – as long as there is a GR: Possession as a fact cannot be recognized at the same
possessor who objects thereto. If at first there was time in two different personalities.
objection but later on such objection ceases, the XPNs:
possession begun by force or intimidation may be (1) Co-possessors – here, there is no conflict of interest,
acquired. Objection may be made by suit of forcible entry both of them acting as co-owners, as in the case of
within a year from the dispossession, otherwise, the property owned or possessed in common.
possession de facto is lost. (2) Possession in different concepts or different degrees
b) Through mere TOLERANCE (permission) – mere inaction
or mere failure to bring an action is NOT the tolerance Rules or Criteria to be used in Case of Conflict or Dispute
referred to in the law. Regarding Possession (BAR)
c) Through CLASDESTINE, SECRET POSSESSION, OR (1) Present possessor shall be preferred
POSSESSION WITHOUT KNOWLEDGE – for this would be (2) If both are present, the one longer in possession
possession by stealth, and not open or public. (3) If both began to possess at the same time, the one who
present (or has) a title
How to Recover Possession (4) If both present a title, the Court will determine.
 Request the usurper to give up the thing. Meantime, the thing shall be judicially deposited
 If the usurper refuses, the former should invoke the aid
of the proper and competent court (that which has Judicial Deposit (Sequestration)
jurisdiction over the subject matter and the parties).  Takes place when an attachment/seizure of property in
 Otherwise, the owner can be made the defendant in a litigation is ordered. (Art. 2005)
forcible entry case with all its repercussions.  Movable and immovable properties may be the object of
sequestration. (Art. 2006)
Art. 537. Acts of Tolerance or Secrecy  The depositary of property/objects sequestered cannot
Acts merely tolerated, and those executed clandestinely and be relieved of his responsibility until the controversy
without the knowledge of the possessor of a thing, or by which gave rise thereto has come to an end, unless the
violence, do not affect possession. court so orders. (Art. 2007)
 As to matters not provided for in NCC, judicial
Clandestine Possession sequestration shall be governed by the Rules of Court.
 By itself is hidden/disguised possession and may be (Art. 2009)
with/without the owner’s knowledge.
 “Tolerance” is permission, as distinguished from Preference of Ownership
abandonment. If an owner abandons, as when within the In case of DOUBLE SALE (Art. 1544) or a DOUBLE DONATION
proper period for prescription, he brings NO action, the (Art. 744)
possession of another will ripen into ownership. a) MOVABLE property – preference in ownership is given to
 SILENCE or inaction is NEGLIGENCE, not tolerance. the person who first possessed in GF.
b) IMMOVABLE property: would never end, for as often as an order of execution is
1) To the first who registered his right in GF in the issued, it would be appealed. (J.M. Tuason and Co. v.
Registry of Property Estabillo)
2) If there was no registration, to the person who first
possessed in GF Legal Means for Restoration to Possession
3) If there was no possession, to the person who a) Reasons for requiring legal means:
presents the oldest title, provided that the title had 1) to prevent spoliation or a disregard of public order
been acquired in good faith 2) to prevent deprivation of property without due
process of law
3) to prevent a person from taking the law into his
Chapter 3 own hands
EFFECTS OF POSSESSION b) Thus,
1) The owner should go to court, and not eject the
Art. 539. Rights to be Respected in Possession unlawful possessor by force.
Every possessor has a right to be respected in his possession; 2) A tenant illegally forced out by the owner-landlord
and should he be disturbed therein he shall be protected in or may institute an action for forcible entry even if he
restored to said possession by the means established by the had not been paying rent regularly.
laws and the Rules of Court. 3) The proper actions are forcible entry or unlawful
detainer (summary action or accion interdictal),
A possessor deprived of his possession through forcible entry accion publiciana, accion reivindicatoria; replevin;
may within ten days from the filing of the complaint present a injuction (to prevent further acts of dispossession).
motion to secure from the competent court, in the action for 4) However, injunction is GENERALLY not the proper
forcible entry, a writ of preliminary mandatory injunction to remedy to recover possession. An accion
restore him in his possession. The court shall decide the reivindicatoria would be BETTER.
motion within thirty (30) days from the filing thereof. 5) A final judgment in an unlawful detainer case may
be executed even if there is still pending an accion
Right to be Respected in Possession reivindicatoria (these can co-exist).
a) Right of a person to be respected in his possession.
b) Protection in said right/retention to said possession Writ of Preliminary Mandatory Injunction
through legal means (Title I, Art. 428)  GR: Injunction CANNOT substitute for the other actions
c) The writ of preliminary mandatory injunction. to recover possession because the possessor has in his
favor, the presumption of rightful possession, at least,
Specific Right to be Respected in Possession ‘til the case is finally decided. (XPN: case of usurpation)
a) Reasons for Protection of Possession:  But the NCC allows the writ of preliminary mandatory
1) Possession is very similar to ownership, and as a injunction because there are at present prolonged
matter of fact modifies ownership. litigations between the owner and the usurper. The
2) Possession almost invariably gives rise to the owner is frequently deprived of his possession even
presumption that the possessor is the owner. when he has an immediate right thereto.
b) Every possessor is protected under Art. 539 (in the
concept of owner/holder) Requisites for the Issuance of the Writ
c) Even in cases admittedly involving public lands, the 1) In forcible entry cases (original court) – file within 10
courts of justice may decree the restoration of its days from the time the complaint for forcible entry is
possession to one who has been illegally divested filed.
thereof, or is being unlawfully deprived of his right to 2) In ejectment/unlawful detainer cases (in the RTC/CA) –
such possession. file within 10 days from the time the appeal is perfected
d) The doctrine of exhaustion of administrative remedies is (that is, from the time the attorneys are notified by the
inapplicable to a party who claims the disputed land as Court of the perfection of the appeal), only if:
his OWN PRIVATE property. a) the lessee’s appeal is frivolous or dilatory; or
b) the lessor’s appeal is prima facie meritorious
Cases and Doctrines
 A squatter has no possessory rights of any kind against Case and Doctrine
the owner of the land into which he has intruded. His  Generally, the WPMI cannot be granted without a notice
occupancy of the land is merely tolerated by the owner. and a hearing where the adverse party can be held and
Thus, there is an implied promise on his part to vacate this is true even in connection with the filing of a case of
upon demand. (Banez v. CA, L-30351, 11 Sept. 1974) forcible entry. (Alvaro v. Zapata, G.R. No. 50548, 25 Nov.
 A writ of execution and order of demolition is NOT 1982)
appealable where there is no allegation that it has varied
the tenor of the judgment. If it were appealable, a case Rule 58: Preliminary Injunction
Section 1. Preliminary injunction defined; classes. A g) Co-owners (unless the co-ownership is clearly repudiated
preliminary injunction is an order granted at any stage of an by unequivocal acts communicated to the other co-
action or proceeding prior to the judgment or final order, owners)
requiring a party or a court, agency or a person to refrain
from a particular act or acts. It may also require the Payment of Land Taxes – Usefulness
performance of a particular act or acts, in which case it shall  Although payment of land taxes is NOT evidence of
be known as a preliminary mandatory injunction. ownership, and although a mere tax declaration or a tax
assessment does not by itself give the title, and is of little
Section 2. Who may grant preliminary injunction A value in proving one’s ownership, STILL payment of the
preliminary injunction may be granted by the court where the land tax is one of the most persuasive and positive
action or proceeding is pending. If the action or proceeding is indicia, which shows the will of a person to possess in
pending in the Court of Appeals or in the Supreme Court, it concepto de dueno or with claim of ownership. And
may be issued by said court or any member thereof. (2a) therefore, prescription may eventually be had, provided
that the other requisites for prescription are present.
Section 3. Grounds for issuance of preliminary injunction.  Otherwise put, tax declarations and receipts are NOT
A preliminary injunction may be granted when it is conclusive evidence of ownership, yet, when coupled
established: with proof of actual possession, tax declarations and
a) That the applicant is entitled to the relief demanded, and receipts are strong evidence of ownership.
the whole or part of such relief consists in restraining the
commission or continuance of the act or acts complained Art. 541. Presumption that Possessor Has a Just Title
of, or in requiring the performance of an act or acts either A possessor in the concept of owner has in his favor the legal
for a limited period or perpetually; presumption that he possesses with a just title and he cannot
b) That the commission, continuance or non-performance of be obliged to show or prove it.
the act or acts complained of during the litigation would
probably work injustice to the applicant; or Presumption that Possessor Has a Just Title
c) That a party, court, agency or a person is doing, There are two requirements under this article to raise the
threatening, or is attempting to do, or is procuring or disputable presumption of ownership:
suffering to be done some act or acts probably in violation a) One must be in possession (actual/constructive)
of the rights of the applicant respecting the subject of the b) The possession must be in the concept of owner.
action or proceeding, and tending to render the judgment  POSSESSION is PRESUMED OWNERSHIP
ineffectual.
Reasons for the Presumption
Art. 540. Possession in the Concept of Owner  Presumption that one is in GOOD FAITH
Only the possession acquired and enjoyed in the concept of  Inconvenience of carrying proofs of ownership
owner can serve as a title for acquiring dominion.
In POSSESSION In PRESCRIPTION
Possession in the Concept of Owner Just title is presumed Just title must be proved
 If a person possesses en concepto de dueno – he may Just title means titutlo Just title means titulo
eventually become the owner by prescription. verdadero y valido colorado
 Thus, a possessor merely in the concept of holder
CANNOT acquire property by acquisitive prescription. 3 Kinds of Titles (Titutlos)
(This is because here, the possession, far from being 1) True and Valid Title (Titulo Verdadero y Valido)
adverse, recognizes the right of ownership in others)  There was a mode of transferring ownership and the
 One cannot recognize the right of another and at the grantor was the owner.
same time claim adverse possession which can ripen to  A title which by itself is sufficient to transfer
ownership through acquisitive prescription. ownership without the necessity of letting the
 For prescription to set in, the possession must be prescriptive period elapse.
adverse, public, and to the exclusion of all. 2) Colorable Title (Titulo Colorado)
 That title where, although there was a mode of
Possession in the Concept of Holder transferring ownership, still something is wrong,
The following cannot therefore acquire ownership by because the grantor is NOT the owner.
prescription: 3) Putative Title (Titulo Putativo)
a) Lessees or those merely permitted to occupy  That title where although a person believes himself
b) Trustees to be the owner, he nonetheless is not, because
c) Antichretic creditors there was NO MODE of acquiring ownership.
d) Agents
e) Attorneys (regarding their client’s properties)
f) Depositaries
Art. 542. Presumption of Possession of Movables Found in in even BEFORE legal interruption, fruits should be
an Immovable returned from that date of CONVERSION into BF.
The possession of real property presumes that of the
movables therein, so long as it is not shown or proved that 2) Natural and industrial fruits are considered received
they should be excluded. from the time they are gathered or severed.
 If at the time of legal interruption, the crops are
Applicability of the Article STILL growing, the ruling on pending crops, not that
a) Whether the possessor be in GF/BF on gathered crops, should apply (See Art. 545)
b) Whether the possession be in one’s own name or in  If at the time of legal interruption, the crops have
another’s already been GATHERED, but are sold only after such
c) Whether the possession be in concepto de dueno or in interruption, the sale is immaterial, for the law
the concept of holder. requires only a gathering or severance, so Art. 544
applies.
Art. 543. Example of Exclusive Possession by a Previous Co-
Owner 3) Civil fruits are deemed to accrue daily and belong to the
Each one of the participants of a thing possessed in common possessor in good faith in that proportion.
shall be deemed to have exclusively possessed the part which
may be allotted to him upon the division thereof, for the Art. 545. Rights Re Pending Fruits
entire period during which the co-possession lasted. If at the time the good faith ceases, there should be any
Interruption in the possession of the whole or a part of a natural or industrial fruits, the possessor shall have a right to
thing possessed in common shall be to the prejudice of all the a part of the expenses of cultivation, and to a part of the net
possessors. However, in case of civil interruption, the Rules of harvest, both in proportion to the time of the possession.
Court shall apply.
The charges shall be divided on the same basis by the two
Rules to Apply for Civil Interdiction possessors.
The Rules of Court applies
a) Civil interruption is produced by judicial summons to the The owner of the thing may, should he so desire, give the
possessor. possessor in good faith the right to finish the cultivation and
b) Judicial summons shall be deemed not to have been gathering of the growing fruits, as an indemnity for his part of
issued, and shall not give rise to interruption: the expenses of cultivation and the net proceeds; the
1) If it should be void for lack of legal solemnities possessor in good faith who for any reason whatever should
2) If the plaintiff should desist from the complaint or refuse to accept this concession, shall lose the right to be
should allow the proceedings to lapse indemnified in any other manner.
3) If the possessor should be absolved from the
complaint. Sharing of Expenses and Charges
In all these cases, the period of the interruption shall be a) The expenses for cultivation shall also be divided pro
counted FOR the prescription. rata. The law says “the possessor shall have a right to a
part of the expenses of cultivation, and to a part of the
Art. 544. Rights of a Possessor in GF to Fruits Already net harvest, both in proportion to the time of the
Received possession.” The better rule would be for the expenses
1) A possessor in good faith is entitled to the fruits received to be borne in proportion to what each receives from
before the possession is legally interrupted. the harvest.
b) The charges (those incurred because of the land and the
Reason for the Law fruits, like TAXES) are also to be divided in proportion to
 Justice demands that the fruits be retained by the the time of possession.
possessor who thought that he was really the owner of
the property, and who, because of such though had Applicability of Article Only to Possessors in GF
regulated his daily life, income, and expenses by virtue of  For a possessor in BF has no right whatsoever to fruits
such fruits. already gathered nor to fruits still pending, except that
 Legal interruption happens when a complaint is filed in the former case, he gets back the necessary expenses
against him and he receives the proper judicial for production, gathering, and preservation of fruits.
summons.  In case of pending fruits, the principle of accession
 All fruits accrued and received since said date must be applies, and the law clearly states that he who plants or
turned over to the winner, that is, either the owner or sows in BF on the land of another, loses whatever is
the lawful possessor adjudged as such by the court. planted or sown without right to indemnity. (Art. 449)
 Why? Because it is ordinarily only from said date
that the possessor should be considered in BF.
Therefore, should there be proof that BF had not set
Crops Not Yet Manifest b) Those incurred for the erection of a chapel, because of
 Art. 545 applies to pending crops. Suppose the crops its possibility of conversion into such materialistic things
have already been planted but are NOT YET manifest at such as warehouse or residence
the time there is a transfer of possession, should the c) Those incurred for the making of artificial fishponds
article also apply? d) Those incurred for the construction of additional rooms
 YES, by application of the GR in Art. 443 in a house: kitchen, bathroom
e) Those incurred for clearing up land formerly thickly
Art. 546. Necessary Expenses covered with trees and shrubbery.
Necessary expenses shall be refunded to every possessor;
but only the possessor in good faith may retain the thing until Rights of a Possessor (in the Concept of Owner) as to the
he has been reimbursed therefor. Useful Expenses
a) If in GF
Useful expenses shall be refunded only to the possessor in 1) Right to REIMBURSEMENT (of either the amount
good faith with the same right of retention, the person who spent or the increase in value at OWNER’S OPTION)
has defeated him in the possession having the option of 2) Right of RETENTION until paid (Art. 546)
refunding the amount of the expenses or of paying the 3) Right of REMOVAL provided no substantial damage
increase in value which the thing may have acquired by or injury is caused to the principal, reducing its
reason thereof. VALUE – UNLESS the winner exercises the option in
(1) (Art. 547)
Necessary Expenses (Gastos Necesarios) b) If in BF
 They are those without which the thing would physically 1) The law OMITS his right to useful expenses but
deteriorate or be lost; hence, those made for the states his right regarding luxurious expenses
preservation of the thing. 2) The law (in the chapter on accretion) provides that a
builder in BF loses whatever is built w/o payment of
Sample of Necessary Expenses any indemnity
a) Those incurred for cultivation, production and upkeep.
b) Those made for necessary repairs of a house.
Art. 547. Right to Remove Useful Improvements
Samples of Unnecessary Expenses If the useful improvements can be removed without damage
a) Those incurred for the filling up with soil of a vacant or to the principal thing, the possessor in good faith may
deep lot. This is not also a repair since the term “repair” remove them, unless the person who recovers the possession
implies the putting back into the condition in which it exercises the option under paragraph 2 of the preceding
was originally, and not an improvement in the condition article.
thereof by adding something new thereto.
b) A house constructed on land possessed by a stranger, Art. 548. Expenses for Pure Luxury
because the house cannot be said to preserve the land. Expenses for pure luxury or mere pleasure shall not be
c) Land taxes are NOT necessary expenses, for they are refunded to the possessor in good faith; but he may remove
needed not for the preservation of the land itself but for the ornaments with which he has embellished the principal
its continued possession. thing if it suffers no injury thereby, and if his successor in the
d) Unnecessary improvements on a parcel of land possession does not prefer to refund the amount expended.
purchased at a sheriff’s auction sale, made just to
prevent redemption from taking place. Expenses for Pure Luxury
e) Expenses made by the possessor – not to preserve the  The articles deals with expenses for pure luxury or mere
property or to save it from being lost – but to enable him pleasure (ornamental expenses) defined as those which
to use the property for his own purposes. add value to the thing only for certain determinate
persons in view of their particular whims. They are
Rights of a Possessor (in the Concept of Owner) as to the neither essential for preservation nor useful to
Necessary Expenses everybody in general.
a) If in GF, entitled to (1) refund; (2) retain premises until
paid Examples of Ornamental Expenses
b) If in BF, entitled only to a refund. a) hand paintings on the wall of a house
b) a garage made of platinum
Useful Expenses (Gastos Utiles) c) water fountains in gardens
 They are those that add value to the property, or
increase the object’s productivity. Rights of a Possessor (in the Concept of Owner) with Ref. to
Luxurious/Ornamental Expenses
Examples of Useful Expenses
a) Those incurred for an irrigation system
a) If in GF – In general, NO RIGHT to refund or retention but  Litigation refers to court action.
can REMOVE if no substantial injury is caused. However,
the owner has OPTION to allow: Art. 551. Improvements Caused by Nature/Time
1) Possessor to remove Improvements caused by nature or time shall always inure to
2) Or retain for himself (owner) the ornament by the benefit of the person who has succeeded in recovering
REFUNDING the AMOUNT SPENT possession.
b) If in BF – In general, NO RIGHT to refund or retention but
can REMOVE if no substantial injury is caused. However,
Art. 552. Liability for Loss or Destruction
the owner has OPTION to allow: A possessor in good faith shall not be liable for the
1) Possessor to remove deterioration or loss of the thing possessed, except in cases
2) Or retain for himself (owner) the ornament by
in which it is proved that he has acted with fraudulent intent
REFUNDING the VALUE it has at the TIME owner
or negligence, after the judicial summons.
ENTERS INTO POSSESSION
A possessor in bad faith shall be liable for deterioration or
loss in every case, even if caused by a fortuitous event.
Art. 549. Rights of Possessor in BAD FAITH
The possessor in bad faith shall reimburse the fruits received Rules Applicable
and those which the legitimate possessor could have a) Possessor in GF
received, and shall have a right only to the expenses 1) BEFORE judicial summons – NOT liable
mentioned in paragraph 1 of article 546 and in article 443. 2) AFTER judicial summons
The expenses incurred in improvements for pure luxury or a) loss/deterioration through FE –NOT liable
mere pleasure shall not be refunded to the possessor in bad b) through fraud/negligence – LIABLE
faith, but he may remove the objects for which such expenses b) Possessor in BF – Whether before or after judicial
have been incurred, provided that the thing suffers no injury summons, and whether due to FE or not, such possessor
thereby, and that the lawful possessor does not prefer to is LIABLE
retain them by paying the value they may have at the time he
enters into possession. Art. 553. Improvements Which Have Ceased to Exist
One who recovers possession shall not be obliged to pay for
Rights of Possessor (in the Concept of Owner) Regarding
improvements which have ceased to exist at the time he
FRUITS
takes possession of the thing.
a) If in GF
1) Gathered or severed or harvested fruits are his own.
2) Pending or ungathered fruits (pro-rating between Art. 554. Presumption of Possession During Intervening
possessor and owner of expenses, net harvest, and Period
charges) A present possessor who shows his possession at some
b) If in BF previous time, is presumed to have held possession also
1) Gathered fruits – must return value of fruits already during the intermediate period, in the absence of proof to the
received as well as value of fruits which the owner or contrary.
legitimate possessor (not the possessor in BF) could
HAVE received with due care or diligence, MINUS  The presumption is particularly useful for prescriptive
necessary expenses for cultivation, gathering and purposes.
harvesting, to prevent the owner from being unjustly
enriched. Art. 555. Ways of Losing Possession
2) Pending or ungathered fruits – no rights at all, not A possessor may lose his possession:
even to expenses for cultivation because by (1) By the abandonment of the thing;
accession, all should belong to the owner, without (2) By an assignment made to another either by onerous or
indemnity (Art. 449) gratuitous title;
(3) By the destruction or total loss of the thing, or because
it goes out of commerce;
Art. 550. Costs of Litigation (4) By the possession of another, subject to the provisions
The costs of litigation over the property shall be borne by of article 537, if the new possession has lasted longer
every possessor. than one year. But the real right of possession is not lost
till after the lapse of ten years.
Costs of Litigation
 Every possessor refers to one in GF/BF, in the concept of Ways of Losing Possession
owner/holder, in one’s own name/that of another, and a) Through the Possessor’s Voluntary Will & Intent
not to the owner or the person adjudged by the court to 1) Abandonment (Art. 555)
be lawfully entitled to possess. 2) Assignment (onerous/gratuitous conveyance)
b) Against the Possessor’s Will Art. 556. When Possession of Movables is Lost or Not Lost
1) Possession of another for more than 1 year The possession of movables is not deemed lost so long as
2) Final judgment in favor of another they remain under the control of the possessor, even though
3) Expropriation for the time being he may not know their whereabouts.
4) Prescription in favor of another
5) Recovery or reivindication by the legitimate owner When Possession of Movables is Lost or Not Lost
or possessor  If the possessor has no idea at all about the whereabouts
c) Because of the Object of the movable, possession is lost, but not when he more
1) Destruction or total loss of the thing or less knows its general location, though he may not
2) Going out of commerce know its precise or definite location.
3) Escaping from possessor’s control of wild animals  In the former, he has lost juridical control; in the latter,
the object remains within his patrimony (not in the
Abandonment – voluntary renunciation of a thing patrimony of another).
Requisites:
1) The abandoner must have been a possessor in the Art. 557. Loss of Immovables with Respect to Third Persons
concept of owner (either an owner or mere possessor The possession of immovables and of real rights is not
may respectively abandon either ownership or deemed lost, or transferred for purposes of prescription to
possession) the prejudice of third persons, except in accordance with the
2) The abandoner must have the capacity to renounce or to provisions of the Mortgage Law and the Land Registration
alienate (for abandonment is the repudiation of a laws.
property right)
3) There must be a physical relinquishment of a thing Loss of Immovables with Respect to Third Persons
4) There must be no more spes recuperandi (expectation to  This refers to possession of real property, and other real
recover) and no more animus revertendi (intent to rights over real property (easement/usufruct).
return or give back).
Art. 558. Acts of Mere Holder
Additional Doctrines
Acts relating to possession, executed or agreed to by one who
1) A property owner cannot be held to have abandoned the possesses a thing belonging to another as a mere holder to
same until at least he has some knowledge of the loss of
enjoy or keep it, in any character, do not bind or prejudice
its possession or the thing.
the owner, unless he gave said holder express authority to do
2) There is no real intention to abandon property when as such acts, or ratifies them subsequently.
in the case of a shipwreck or a fire, things are thrown
into the sea or upon the highway.
GR: Acts relating to possession, executed or agreed to by one
3) An owner may abandon possession merely, leaving
who possesses a thing belonging to another as a mere holder
ownership in force, but a mere possessor cannot to enjoy or keep it, in any character, do not bind or prejudice
abandon ownership since he never had the same.
the owner.
4) If an owner has not lost possession because there has
been no abandonment, it surely cannot be acquired by
XPNS:
another through acquisitive prescription. 1. Unless he gave said holder express authority to do such
5) There is no abandonment if an owner merely tolerated
acts; or
(permitted) another’s possession, nor if the latter was
2. Ratifies them subsequently (NCC, Art. 558).
done by stealth or effected through force/intimidation.
6) There is no abandonment of movables even if there is
temporary ignorance of their whereabouts, so long as Art. 559. When Possession of a Movable is Equivalent to
they remain under the control of the possessor. Title
7) In true abandonment, both possession de facto and de The possession of movable property acquired in good faith is
jure are lost. equivalent to a title. Nevertheless, one who has lost any
8) Abandonment which converts the thing into res nullius movable or has been unlawfully deprived thereof, may
(ownership of which may ordinarily be obtained by recover it from the person in possession of the same.
occupation), does not apply to land.
If the possessor of a movable lost or which the owner has
Assignment been unlawfully deprived, has acquired it in good faith at a
a) Means the complete transmission of ownership rights to public sale, the owner cannot obtain its return without
another person, onerously or gratuitously. reimbursing the price paid therefor.
b) While in assignment, at no time did the thing not have a
possessor (for possession merely changed hands or Rule regarding the right of a possessor who acquires a
control); in abandonment, there was a time when the movable claimed by another
object did not have any possessor at all.
If the possessor is in:
1. Bad faith – He has no right. Summary of recovery or non-recovery principle
2. Good faith – He has presumed ownership. It is equivalent A. Owner MAY RECOVER WITHOUT REIMBURSEMENT:
to title. 1. From possessor in bad faith; or
2. From possessor in good faith (if owner had LOST the
Requisites: property or been unlawfully deprived of it) (the
a. Owner has voluntarily parted with the possession of the acquisition being from a private person) (NCC, Art. 559).
thing; and
b. Subsequent possessor is in the concept of an owner. B. Owner MAY RECOVER but should REIMBURSE:
c. Possession in good faith; If possessor acquired the object in good faith at a PUBLIC
SALE or AUCTION (NCC, Art. 559). Because the publicity
Possession of movable property acquired in good faith attendant to a public sale should have been sufficient
GR: Doctrine of irrevindicability – The possession of movable warning for the owner to come forward and claim the
property acquired in good faith is equivalent to title and the property.
true owner cannot recover such movable.
C. Owner CANNOT RECOVER, even if he offers to
NOTE: This is merely presumptive as it can be defeated by the REIMBURSE (whether or not the owner had lost or been
true owner (NCC, Art. 559). unlawfully deprived):
1. If possessor had acquired it in good faith by purchase
XPNs: from a merchant’s store, or in fairs, or markets in
1. When the owner has lost a movable; or accordance with the Code of Commerce and special laws
2. Has been unlawfully deprived of a movable. (NCC, Art. 1505 and Code of Commerce, Art. 85 and Art.
86);
In which case the possessor cannot retain the thing as against 2. If owner “is by his conduct precluded from denying the
the owner, who may recover it without paying any indemnity seller’s authority to sell.” (ESTOPPEL) (NCC, Art. 1505);
and
XPN to the XPNs: Where the movable is acquired in good 3. If possessor had obtained the goods because he was an
faith at a public sale, the owner must reimburse to recover innocent purchaser for value and holder of a
[NCC, Art. 559(2)]. NEGOTIABLE document of title to the goods (NCC, Art.
1518) (Paras, 2008).
Duty of a finder of a lost movable (NCC, Art. 719)
Whoever finds a lost movable, which is not a treasure, must Q: Suppose recently stolen property is found in possession
return it to its previous possessor. If the latter is unknown, of A, is A presumed to be the thief?
the finder shall immediately deposit it with the mayor of the A: YES, it is a disputable presumption “that a person found in
city or municipality where the finding has taken place. The possession of a thing taken in the doing of a recent wrongful
mayor in turn must publicly announce the finding of the act is the taker and doer of the whole act.’’ (Rules of Court,
property for two consecutive weeks. Rule 131, Sec. 3[j]). It is true that one who possesses a
movable, acquired in good faith, has what is called an
Authorized public auction of lost movable equivalent of title, but this is destroyed when it is proved that
If the movable cannot be kept without deterioration, or said movable belongs to somebody else who has lost it, or
without expenses which considerably diminish its value, it has been unlawfully deprived of its possession (NCC, Art. 559)
shall be sold at public auction eight days after the publication. (Paras, 2008).

Awarding of the lost movable to the finder Q: In order to contest the title of the possessor in good faith,
If the owner or previous possessor did not appear after 6 what should the true owner do?
months from the publication, the thing found or its value or A: The true owner should present suffi cient proof of the
proceeds if there was a sale, shall be awarded to the finder. identity of the object AND that he had either lost it or has
The finder, however, shall pay for the expenses incurred for been illegally deprived of it. This proof is an indispensable
the publication (NCC, Art. 719). requisite a conditio sine qua non in order that the owner of
the chattel may contest the apparent title of its possessor.
Duty of the owner who appeared Without adequate proof of such loss or illegal deprivation,
1. Give a reward to the finder equivalent to one-tenth the present holder cannot be put on his defense, even if as
(1/10) of the sum or of the price of the thing found (NCC, possessor he has no actual proprietary title to the movable
Art. 720); property in question (Paras, 2008).
2. Reimburse to the finder for the latter’s expenses
incurred for the preservation of the thing (NCC, Art. 546) Rule when possessor has already become the owner
and expenses spent for the location of the owner; and Art. 559 in fact assumes that the possessor is as yet not the
3. Reimburse the expenses for publication if there was a owner, for it is obvious that where the possessor has come to
public auction sale (Pineda, 1999). acquire indefeasible title, let us say adverse possession for
the necessary period, no proof of loss, or illegal deprivation
could avail the former owner of the chattel. He would no
longer be entitled to recover it under any condition (Paras,
2008).

Estafa is considered as unlawful deprivation

Q: Using a falsified manager's check, Justine, as the buyer,
was able to take delivery of a second hand car which she had
just bought from United Car Sales Inc. The sale was registered
with the Land Transportation Office. A week later, the seller
learned that the check had been dishonored, but by that
time, Justine was nowhere to be seen. It turned out that
Justine had sold the car to Jerico, the present possessor who
knew nothing about the falsified check. In a suit by United Car
Sales, Inc. against Jerico for recovery of the car, plaintiff
alleges it had been unlawfully deprived of its property
through fraud and should, consequently, be allowed to
recover it without having to reimburse the defendant for the
price the latter had paid. Should the suit prosper? (1998 Bar)
A: The suit should prosper because the criminal act of estafa
should be deemed to come within the meaning of unlawful
deprivation under Art. 559 as without it United Car Sales
would not have parted with the possession of its car. Thus, it
was allowed to recover the property without having to
reimburse the defendant.

Art. 560. Possession of Wild Animals

Wild animals are possessed only while they are under one's
control; domesticated or tamed animals are considered
domestic or tame if they retain the habit of returning to the
premises of the possessor.

Art. 561. Lawful recovery of possession that had been

unjustly lost
One who recovers, according to law, possession unjustly lost,
shall be deemed for all purposes which may redound to his
benefit, to have enjoyed it without interruption.

Requisites:
a) Possession was lost unlawfully or unjustly;
b) Possessor lawfully recovers possession; and
c) Uninterrupted possession is beneficial to him.