Acquisition and Loss of Possession Under Spanish Civil Code

Posted on Sep 2, 2024 in Law & Jurisprudence

The Acquisition of Possession

The acquisition of possession, and rights in general, can be:

• Original: Ex novo, with no basis in anything above.
• Derivative: Also called transmission, is based on the loss of a right belonging to another party.

Possession can be acquired as a right in these two ways. However, the acquisition of possession as a fact is more complicated, questioning whether the doctrine can be learned therefrom, as though an asset is transferred, the fact is that someone else had it. Or a person has it or has another (except in cases of co-possession). Under the majority doctrine, possession as a fact can only be acquired as original and not derivative.

Acquisition of Possession as a Fact

Art. 438 of the Spanish Civil Code (CC) states: “Possession is acquired by the material occupation of the thing or right owned, …”. We must understand that possession is acquired when the thing is subject to our will. The important thing is to take de facto power over a thing, submission of the will, i.e., when they get on a lordship done.

Example: In a sale, the purchase of the possession of the property where the transfer of ownership is achieved through the delivery of the thing. But what if delivery cannot be done well? We’ll have to use a procedure that delivery means, such as acquiring keys.

Delivery is not required to have their consent, but of understanding and will, a certain consciousness that exercises power over the thing. No qualification acquisition especial.

There is animus derivative possession:

• When the former possessor delivers the thing to the new owner.
• If we are given the thing, but it puts at our disposal effectively – with the new agreement between the transferor and the acquirer.
• If it gets actually held by the acquirer for that agreement.

Acquisition of Possession as a Right

Art. 438 of the CC, in its second clause provides that “… or the fact they remain subject to the action of our will, or by their own acts and legal formalities established for acquiring such right” is acquired possession as a right, not by the acquisition of effective power over the thing, but when you perform an act which the law regards as sufficient to acquire this right. The ability necessary to perform such an act has to require the purchaser. But if you are a third party who will perform the act regardless of the acquirer, one does not need the ability nor the understanding or will.

Cases of Acquisition as a Right:

• Acquiring hereditary: Goods are acquired when the heir accepts the legacy. This act of acceptance is acquiring the right.
• Acquisition of intangible possession that has been stripped: When it grants the purchaser the right to reclaim from the dispossessor. When the law passed, what comes through is the intangible possession may reclaim possession and made true to the stripped.
• Mediate acquisition of possession: When a person buys a house to another and agree that the seller is left on the floor as a tenant, the buyer, what possession acquired? Art. 1463 of the CC said that just the mere agreement of the parties to gain possession when the hoe can not be delivered to the purchaser at the time because you can not move. It refers to movable property, but according to the doctrine can be extended by analogy to property.
• Instrumental acquisition of possession: It takes place when purchased by the grant of a deed. When an asset is transferred by deed, it means the transmission, provided that the writing is excluded that the parties do not want to show possession.
• Acquisition documentary: It is an acquisition that falls on intangible things. In this case there is no extension by analogy. This possession is transmitted when delivered to the purchaser titles belonging to the law (art. 1464 CC). It is different from instrumental delivery, since in this transmission occurs through the granting of the deed, though he was not delivered to the purchaser. The transmission is the deed. In the documentary is the delivery of certificates of membership, this is necessary, the supply to the purchaser of the securities.

Loss of Possession

Possession is lost as a fact when:

• It stops the ability of the thing to be possessed (to stay out of commerce, art. 460. CC).
• Although no end to the fitness of the thing to be possessed, power is lost indeed about it, that is, when no longer subject to effective dominion of our will. E.g. loss, he will not actually exercising power over the thing, does not result in loss of possession because possession is not to use that power, but to have it. The loss may be voluntary or involuntary.

Possession is lost as a right when it stops the ability of the thing to be possessed or destroyed so that it can not now governed by law. Plus:

• In any case, transmission or acquiring possession as a fact (e.g. to end the lease, the landlord recovers possession of a thing material).

Movable Property

Movable property is governed by Article 464 of CC. That article states “The possession of personal property, acquired in good faith, is equivalent to the title. However, having lost a movable thing or was deprived of it illegally, who may claim to possess. If the possessor of the thing lost or stolen furniture has acquired the bona fide public sale, the owner can not obtain restitution without paying back the money given by her. Nor can the owner of things pledged in the Montes de Piedad established with government authorization to obtain the refund, regardless of the person who had committed no refund prior to the Premises the amount of commitment and interest due. As for acquired in exchange, fair or market, or a merchant legally established and ordinarily engaged in the trafficking of similar objects will be available to the Commercial Code.

Regime of Settlement of Possessory Status

REGIME OF SETTLEMENT OF possessory status. Validation of possessory status occurs when an owner is evicted, beaten in the possession by another individual who will be entering into possession. During the time that the holder has been possessing expired, determine the legal regime on the costs and improvements, tree and liability for loss or impairment of the thing the establishment of rules that make up the different legal regimes The Code holders difference between good and bad faith, but with general system that designs coexist Code specific rules depending on what the specific title of ownership, rules that take precedence over general throughout caso.El scheme costs and mejoras.1.1.) Necessary expenses: paid to any holder, whether in good faith and bad faith (Art. 453 CC), but only the possessor in good faith may retain the thing until you satisfagan.1.2.) Expenditure useful are those which, although not necessary, improve the production or the thing in general. They are credited only to the possessor in good faith (Art. 453 CC) and also conferred lien. The holder who had won possession, may choose “

• Satisfy the amount of expenses or to pay the increase in value that they have acquired the thing.

1.3.) Cost of pure luxury is not paid to any holder (Art. 454 CC). However, it gives the holder the so-called “ius toliendi” or the right to remove anything that can separate and cause no serious damage or disruption to the thing it is attached. This right ceases when the holder wishes to acquire such expenditures winner luxury, either by paying the value of expenditure, either by paying the value of mejora.En any case, “the improvements from the nature or time always give the benefit of which he has defeated in possession” (Art. 456 CC).

The System of Fruit

2.1.) Holders of good faith. Under Article 451 CC “make its own the fruits received until it is interrupted possession legally. Perceived means natural or industrial fruits from which rise or split. In connection with the hanging fruits (Art. 452 CC) the code difference between natural and industrial fruits, for which the holder shall overcome “entitled to the costs that would have made for their production” and “share of the cash crop proportional to the time of possession.” The loads are similarly apportioned between the two keepers.” Furthermore, the Code empowers the new owner to distribute the fruit as directed or enable the possessor in good faith “the right to close the growing and harvesting of Fruits pending, as compensation for the cost of cultivation and the liquid product that belongs. The possessor in good faith that for whatever reason do not want to accept this award, lose the right to compensation otherwise”.

2.2.) Holders of bad faith under Article 455, “will pay all benefits received and the legitimate holder could have earned.”

Regime of Liability for Loss or Impairment of Cosa

3.1.) Holders of good faith: Do not respond in damages for loss or impairment unless they are doloso.

3.2.) Holders of bad faith: Respond in any event, including a fortuitous event, they could even respond to the force majeure when they are delayed in delivery of the thing.