Possession

POSSESSION. - It is a state of fact protected by law - which attaches particular legal consequences to it - by virtue of which a material object or the exercise of a right is bound to the person who has the intention of disposing of it.

I. NOTIONS, DIVISIONS, OBJECT

The essential elements of possession are: the relation of the object to the person, such that the person can dispose of it, and the will to retain it. Roman law expressed the first with the terms: tenere, detinere, esse in possessione, possessio naturalis, possessio corporalis, possessio, possidere corpore; the second with the terms: animus, animus possidendi, affectus possidendi, animus rem sibi habendi; terms still currently in use among civilists and canonists. The distinction between possession and property (v.), although not original, nevertheless goes back to very remote times. Possession is also distinguished from simple detention, which is protected by law but is not accompanied by the will to dispose of the thing independently of others. From the definition given it follows further that it is not indispensable to possession that the person have the thing with him or under his complete and autonomous control; he can continue to possess even if the object is held by third parties in his name. This, however, cannot take place for the second element, that is, for the animus, inasmuch as the intention cannot be substituted by the intentions or wills of others. Therefore, what in concrete terms absolutely determines the difference between possessor and simple detainer, and consequently that between possession and detention, is precisely the animus, which must in every case and uninterruptedly remain in the possessor, on pain of loss of possession. It remains to be remembered that also in the case of possession of incorporeal objects, which it is better to call quasi-possession, the possessor may have the object at his immediate disposal or may share it, in simple detention, with others.

The classifications of possession are already found in Roman law, although today they do not all have the same importance.

a) Natural and civil possession. The distinction (currently without practical relevance) serves to indicate the difference between the purely material possession of the object, corresponding more or less to today's detention and consequently devoid of the animus of possessing (a detention which not only in ancient times was furnished with legal protection), and that furnished with an action and juridically defended by law as true and proper possession, comprising the animus possidendi and a just cause. b) Just and unjust possession. The terms refer to the moment of acquisition of possession. In classical Roman law, possession acquired without violent dispossession, not clandestinely, and not received by precarial concession (nec vi, nec clam, nec precario) was held to be just; unjust, on the other hand, was any possession affected by one of the aforesaid defects. Even the epithets of just and unjust were not always nor equally founded on the presence or absence of the three elements described; nevertheless even today they are customarily used to indicate much more vaguely the possession to which the possessor has a right or, on the contrary, that to which he has no right. c) Possession ex iusta causa and ex causa iniusta. Very probably already before Justinian, that is, at the time of classical law itself, just possession was also called possession ex iusta causa, and unjust possession ex causa iniusta. Today the terms are practically to be assimilated, although iusta and iniusta causa better express respectively the lawful or unlawful motive for which possession is held, prescinding from the legal title that makes it just or unjust. d) Possession in good faith and possession in bad faith. Of fundamental importance relatively to conscience, that is, to the moral factor, possession in good faith indicates that the subject has the conviction that the object is legitimately possessed by him, that is, without prejudice to the rights of third parties. The Italian Civil Code expressly says: "he is a possessor in good faith who possesses in ignorance of violating the right of another" (art. 1147) and adds that: "good faith does not avail if the ignorance depends on gross negligence" (ibid., para. 2); which evidently and all the more so holds for canon law and Christian morality.

Generally, any good that in its kind is endowed with its own distinct individuality may be the object of possession, whether it be corporeal or also incorporeal. This latter possession is very often also called, more specifically, quasi-possession, whose classic examples are found in usufruct, emphyteusis, active servitude, etc. In itself every good thus described could be the object of possession; nevertheless society, both civil and ecclesiastical, has rightly placed limits, in reality very reduced, on this, excluding from it those goods that it declared to be outside commerce.

II. ACQUISITION AND LOSS OF POSSESSION, EFFECTS, PRESUMPTIONS

Since possession is not a right, but a simple juridical relationship founded on a matter of fact, for its acquisition it will suffice that the two essential factors constituting it occur, however this may come about. When the person has brought about these two elements, whether by his own autonomous act of apprehension of the object, or by delivery made to him by third parties, with the intention of being its possessor, whether this occurs by a lawful act or by an unlawful act, for example, by theft, robbery, violence, possession is acquired: which nevertheless does not mean that the subject is a legitimate possessor. The rules governing the acquisition of possession are set out in arts. 1141 ff. of the Italian Civil Code. Art. 1141, para. 2, establishes that the mere detainer of the object does not become its possessor except by virtue of a different and new title proceeding from third parties or by direct opposition made by him, even unlawfully, against the possessor. In the second place it is expressly established that "acts performed with the tolerance of another cannot serve as a basis for the acquisition of possession" (art. 1144); which applies without further ado on the same footing to acts performed on an object granted out of the possessor's courtesy or out of his desire to avoid disputes and live in peace. Finally, it must be borne in mind that, although possession is a matter of fact, nevertheless, but in favor of the heirs alone, it is admitted that it continues in them without interruption, exactly as it stood in the de cuius, defects included (art. 1146, para. 1); as likewise that it passes on the same conditions to successors under a particular title, should these wish it and have an interest in it (art. 1146, para. 2). Accordingly the acquisition of possession is due either to an original cause, apprehension of an object not possessed by others, or to a derivative title, that is, by contract, succession, acts of violence, clandestine taking.

Possession is lost with the cessation of both essential elements or of only one of them. It must be understood, however, as regards the corporeal element, that for the maintenance of possession it is not required that it be materially exercised by the possessor, nor that he detain it personally and without any interruption, provided that by reason of a lasting obstacle he does not find himself in the practical impossibility of disposing of it according to the common social sense and according to what the nature of the object entails: already the Romans held that, although possession is not acquired solo animo, it can however be retained solo animo, provided that the object can be mastered.

The law protects possession indifferently, whether legitimate or illegitimate; the protection, however, in no way prejudices the right of third parties over the object of the possession, which must therefore be proved in another forum. From the fact that a person is certainly an unjust possessor there arises in no one the right to violate his possession except in accordance with the law. In the second place, possession is protected, at least in Italian legislation, even if it has as its object a thing placed outside commerce; nevertheless this protection is granted only against third parties, not against the authority that has jurisdiction over such things (art. 1145, para. 2). Of very particular importance is moreover possession in relation to the fruits (v.) produced by the object possessed and to the expenses incurred for its maintenance. Regarding these, art. 1150, para. 3, provides (in relation to the general rule imposing reimbursement of expenses to the possessor by the claiming owner, art. 1150, para. 1) that the said indemnity "must be paid in the measure of the increase in value obtained by the thing as a result of the improvements," which does not happen, at least in the same proportion, for the possessor in bad faith. In cases of additions made by the possessor in good faith to the thing (art. 936), the latter, where the said additions constitute improvements, is entitled to "an indemnity in the measure of the increase in value obtained by the thing" (art. 1150, para. 3). Furthermore, and the rule is particularly favorable to the possessor in good faith, art. 1152, para. 1, establishes that the latter "may retain the thing until the indemnities due to him have been paid"; and also "until the guarantees ordered by the judicial authority have been provided" (ibid., para. 2). The possessor in bad faith (art. 1150, para. 3) is entitled to the expenses incurred for the improvements made to the thing, provided that these still exist at the time of restitution (ibid., para. 2), but only in the measure of the "lesser sum between the amount of the expense and the increase in value." Furthermore, all the expenses that any possessor had to bear during the period of time to which the fruits extend that he must now surrender to the third party, even if the legitimate owner, are also owed to him.

In matters of possession, certain presumptions must be borne in mind. Thus it is presumed without further ado that whoever exercises the power of fact over the object also has true and proper possession. In the second place the law presumes intermediate possession, in the sense that "the present possessor who possessed at a more remote time is presumed to have possessed also in the intermediate time" (art. 1142). This presumption, like the others, evidently yields to a different truth should it be proved, but the present possessor is freed by law from proving intermediate possession merely by having proved that he possesses at present and that at the beginning of a determined period he possessed. However, there is a presumption that counterbalances the preceding one; in fact: "present possession does not give rise to a presumption of prior possession, unless the possessor has a title as the basis of his possession; in this case he is presumed to have possessed from the date of the title" (art. 1143). Finally there is a presumption concerning the conscience of the possessor. It is obviously a presumption that in no way changes the state of things, nor does it exempt, before conscience, from the restitution of the object of the possession should it in fact not correspond to the truth, but which nevertheless before the law attributes the status of legitimate possessor. Art. 1147, para. 3, in fact says: "good faith is presumed and it suffices that it existed at the time of acquisition"; and although it is established that good faith does not avail if the ignorance of the violation of another's right depends on gross negligence (ibid., para. 2), nevertheless when this gravely culpable ignorance cannot be proved, good faith remains for that very reason presumed.

III. USUCAPION AND POSSESSION

The Italian Civil Code clearly warns that "possession acquired by violence or clandestinely is of no avail for usucapion except from the moment when the violence or clandestinity has ceased" (art. 1163); therefore, although this too is a true possession protected as such by law, it is nevertheless not sufficient to acquire ownership. Likewise art. 1164 establishes that "whoever has possession corresponding to the exercise of a real right over another's thing cannot usucape the ownership of the thing itself." Nevertheless he too can usucape those goods, if the title of his possession is changed through the intervention of third parties or through his own opposition to the owner, and only from the moment of the birth of that title. It is also expressly established that the interruption of possession during the period required for usucapion occurs only if the possessor has been deprived of possession for more than a year, and provided that he has not brought the action for recovery if in fact he recovered it (art. 1167).

This premised, possession in good or bad faith, according to the longer or shorter time required by law, produces the effect of transferring in favor of the possessor also the title of ownership. Precisely: a) the possessor in good or bad faith acquires ownership of immovable property and the other real rights of enjoyment over them by the mere fact of possession continued for 20 years. The rule is general and operates before the law without possibility of objection by third parties, including the previous owner (art. 1158). However, both as regards this rule and as regards what will be said below concerning good and bad faith in their reflections on conscience and morals, it is indispensable to bear in mind what is said on the matter under the entry FEDE, BUONA (E CATTIVA); b) the possessor in good faith, or rather one who in good faith has acquired from someone who was not the owner an immovable or another real right of enjoyment over an immovable by virtue of a title in itself capable of transferring ownership and duly recorded, acquires ownership of it upon the expiration of ten years from the date of recording (art. 1159), even if before the completion of this period a state of bad faith has arisen in the possessor; c) the two preceding rules apply equally to the acquisition of universality of movable goods or of real rights of enjoyment over them, respectively with 20 and 10 years of possession according to bad or good faith (art. 1160); d) in the case of movable goods, supposing that there are lacking titles in themselves capable of transferring ownership, art. 1161 likewise establishes as sufficient possession of respectively 20 years for the possessor in bad faith and ten for one in good faith; e) if instead, in the acquisition of movable goods registered in public registers, the person receives, under a title capable of transferring ownership, the object duly recorded, he acquires ownership of it three years from the date of recording if the acquisition took place in good faith from someone who was not the owner, in ten if any of these conditions is lacking (art. 1162); f) however "whoever has possession corresponding to the exercise of a real right over another's thing cannot usucape the ownership of the thing itself, if the title of his possession has not been changed by a cause proceeding from a third party or by virtue of opposition made by him against the right of the owner. The time necessary for usucapion runs from the date on which the title of possession was changed" (art. 1164). For the Italian Civil Code, therefore, for the twenty-year usucapion of immovable property or of real rights over them, good faith is not necessary even at the beginning of possession; whereas it is required, but only at the beginning, in the ten-year one; the same occurs in the usucapion of other goods with three-year or ten-year possession.

IV. DEFENSE OF POSSESSION

It is not useless to recall the reasons that led first Roman law, then canon law and afterwards all legal systems in general to defend a simple state of fact which not only does not necessarily entail a right, but is at times positively opposed to it: it suffices to think of possession in bad faith, which the law protects in its essential elements even against the owner himself. The reasons are of a public and private nature. It is evident that, since proof of ownership is often truly diabolical, as the jurists said, if there were no adequate means that dispensed with such proof for the one who in fact peacefully has mere possession of the thing, very often the owner himself would be practically unable to exercise his right if it were not sufficient for this purpose to adduce the argument of the fact of possession. The social order requires the same, since it cannot allow, for evident reasons, that a citizen take justice into his own hands. The law has therefore sought to reconcile as far as possible the rights of the owner with those of the possessor. Moreover, it is logical that in uncertainty the legal norm should attribute to the one who in fact possesses also the title of true possessor, until the contrary is proved. Besides, by its nature the purpose of possessory actions is essentially provisional, and in reality they favor both the titleholder or owner of the thing and the possessor or mere detainer (in the cases contemplated, also for the latter). It goes without saying, however, that in addition to the legal defense of possession, everyone retains intact the right of legitimate self-defense in the case of actual violence against what he in fact possesses.

1. Action for reinstatement

Whoever has been violently or clandestinely deprived of his possession may bring the action for reinstatement or for dispossession. The principle that has become classic, spoliatus ante omnia restituendus, is owed to canon law. And so that there may be no room for underhanded maneuvers, especially delaying ones, both the Italian Civil Code (art. 1168, last paragraph) and the CIC (cann. 1699 § 2 and 1700) impose an urgent procedure free of all formality, for which the mere notoriety of the fact suffices so that, without any delay, restitution be ordered of what the possessor was despoiled of. The action for reinstatement also belongs to the detainer, not possessor, of an object, except in the case of a detainer by reason of service or hospitality (art. 1168, para. 2; CIC, can. 1694).

In Italian law, contrary to what the CIC establishes, which admits the action against any detainer of the thing (can. 1698 § 1), the same is not admitted except against the author of the dispossession or against one who succeeded to possession by particular title with knowledge of the dispossession (art. 1169). Both codes, however, substantially agree in determining the period of time within which that action may be brought, that is, within one year from the dispossession or from the moment the possessor became aware of it, especially in the case of clandestine dispossession (art. 1168, paras. 1 and 3; can. 1698 § 2); the CIC, however, admits the exception of accomplished dispossession, which by its nature is perpetual. The action is also admitted against the owner of the thing, except in the case of the administrator or agent who holds the thing in the interest of his principal.

2. Action for maintenance

It is directed at guaranteeing and defending the possessor in the enjoyment of his possession against every kind of disturbance by third parties. In the Civil Code it has a narrower field, in the sense that, unlike what happens for the preceding one, which is directed at the protection of every kind of property, this one may be carried out only in the case of possession of immovable property or of real rights over an immovable or of a universality of movable property (art. 1170, para. 1). The action is admitted against anyone, provided that the possession has lasted for more than one continuous and uninterrupted year and has not been acquired violently or clandestinely (ibid., para. 2); however, it is also admitted in favor of possession acquired violently or clandestinely, provided that the action is brought after one year from the day on which the violence or clandestinity in fact ceased (ibid., para. 2); while the CIC admits it against every disturber with the exception of the person from whom the possessor violently or clandestinely obtained it or from whom he received the thing precariously (can. 1696 § 1).

For the other means of defense of possession, v. DENUNCIA DI NUOVA OPERA E DI DANNO TEMUTO.

Lorenzo Simeone