Possession - nature and types. Possession in good faith. Rights of the possessor. Protection of possession
Possession is a de facto state. Object of possession can be only property. Art. 68 (1) PA provides us with the legal definition of possession - namely, it is the exercise of de facto power over a property which the possessor holds, either personally or through another, as his own. The definition is given two cumulative attributes: objective - exercise of de facto power, and subjective - the intention to hold the property as one’s own. Holding the property as one’s own presupposes legal capability. It is also necessary for the possession to be continuous and not occasional which would mean not losing control over the property for more than 6 months. There is no interrupted possession – if the possession is interrupted, it is considered lost (terminated), but can be exercised again. The importance of continued possession is relevant for the protections provided by Art. 75 PA and the prescription under Art. 81 PA. Finally, possession must be undisturbed and clear, i.e. not concealed.
Types of possession
1. According to the presence of a legal basis for the emergence of possession, the PA distinguishes two types of possession - possession in good faith and unconscientious (ordinary) possession.
1.1. Possession in Good Faith:
This is aggravated possession. Its presence is determined by additional conditions. The actual composition of possession in good faith is outlined in the Art. 70 PA. Possession in good faith is based on a legal fact, which is capable to transfer the ownership, transfer or establish other property right - these can be bilateral contracts (sale, exchange), unilateral transactions (excl. testaments, as a testament on another's property is void pursuant to Art. 19 of the Inheritance Act), multilateral (contribution of real estate), administrative action or any other complex factual composition or a court decision (e.g. court decision under Art. 19 Obligarions and Contracts Act). Next, it is important that the legal grounds should constitute a valid legal act as void grounds may not give rise to transferring an ownership right (OR), respectively to transfer or establish another property right (PR). If the basis for the transfer of PR is voidable, it produces legal effects, but they can be erased retroactively. At the same time, these legal grounds apparently contain some drawbacks, as otherwise the OR would seamlessly pass to the possessor. These disadvantages may be the following1. The transferor is not the owner - hence the meaning of the principle that nobody can transfer more rights than those they hold and the transferee may not become the owner. Another shortcoming may be that the form for the validity of the contract giving rise to the OR was vitiated. The form was initially adhered to, but the infringement makes the act unfit to transfer the OR. Finally, the possessor must have not been aware of the infringement at the time of legal entitlement. The person remains a bona fide possessor even if they subsequently become aware, since factual ignorance was present at the time of legal entitlement. Any mistake is relevant - both in fact and in law. The possessor must prove only the legal basis which could entitle him to ownership, because there is a presumption of good faith, which applies only to ignorance.
Good faith of the possessor has the following legal significance:
● Prescription for the acquisition of property is five years;
● A bona fide possessor may use the property and enjoy the benefits derived from it until the bringing of the action for its return;
● A bona fide possessor may ask, for the improvements made by him, the sum with which the value of the property has increased as a result of such improvements;
● A bona fide possessor may hold the property until reimbursed for the improvements and the expenses.
1. 2. Mala fide (ordinary) possession - what is not in good faith, i.e. does not meet the criteria for possession in good faith.
The mala fide possessor has both rights and obligations. Under Art. 73 (1), a mala fide possessor shall owe the owner the benefits which he has derived or could have derived, as well as compensation for the profits of which he has deprived the owner, deducting the expenditures made for this purpose. However, they enjoy the following rights: the right to seek protection of the possession under Art. 75 and Art. 76 of the Act. Prescription in unconscientious possession is longer - 10 years for real estate and 5 years for movable property. A mala fide possessor may ask that he be reimbursed for the necessary expenditures made by him for the preservation of the property. They may ask, for the improvements made by him, only the lesser sum of the sum total of all expenditures and the sum with which the value of the property has increased as a result of such improvements.
The distinction between good faith and bad faith possession, examined above, is the most important, but there are further distinctions.
2. Full and limited possession
2.1. Full possession occurs when the possessor exercises such de facto power, such effect on the property as may also be done by the owner. The possessor fully possesses, uses and disposes of the property possessed by him.
2.2. Limited possession - here the possessor performs actions which correspond in volume to a limited property right - e.g. only the right of construction. Accordingly, it is absolutely possible to have both full and limited possession. Typical for a possessor with limited possession is that they are aware that their power is not as an owner, but rather within the established property right in their favor.
This occurs when two or more people at the same time exercise possession on the same property. If their possession is full, they possess the property as owners, considering the property as joint. Intention is important. The actual power can be exercised only by one of them - in such case this person becomes the possessor for themselves and the holder for the others.
Legal effects of possession
If someone violates the rights of the possessor, he is entitled to protection of their possession and compensation for damages under the general rules. Moreover, after a certain period the possessor has the right to acquire ownership of the property by prescription. Under certain conditions laid down by law, the possessor is further entitled to the costs. Finally, from the procedural and legal perspective, there is a presumption that the possessor is the owner of the property, although the burden of proof depends on the procedural and legal quality of the party.
Protection of possession
Possession was established primarily to be given protection. These are claims that are related to the protection of legal basis. The aim of the legislator is to prevent arbitrariness. Protection is given for all types of possession. Two types of protection are provided for in the legislation:
1. Action for the Protection of impaired possession under Art. 75 PA;
2. Action for restitution of seized possession or holding under Art. 76 PA.
Action for the protection of impaired possession
Infringement under Art. 75 PA is an action which infringes the factual possession, the intention of the offender is irrelevant. Claimant is the legitimate possessor, who has continuously possessed the property for more than six months. The aim is to protect only the lasting and doubtless possession. According to Art. 83 PA, whoever proves that he has possessed during different times shall be deemed to have possessed in the intervals between them as well, unless proven otherwise. Defendant is any intruder, and action must be brought within 6 months from the infringement. The term is a limitation.
The action under Art. 76 PA
This is an action for the recovery of possession or holding. Claimant is the legitimate possessor, the term of possession is irrelevant. Subject of the claim may be movable or immovable property. Infringement of the possession needs to have been done through violence or concealement. The defendant in this case is the person who has taken the property, i.e. the action is personal. The action must be brought within 6 months of learning or of cessation of the violence.
With these action, the defendant is ordered to return the property, end the infringement or to restore it to its previous state.