Mobile Property: Acquisition and Loss of Ownership
NOTE LESSON 08: Mobile Property
Forms of acquisition and loss of property: the acquisition of property incorporates the rights of the owner into a holder. If, on the one hand, a person acquires ownership of a movable, on the other hand, another loses it simultaneously. Thus, the acquisition and loss are analyzed at the same moment. These are the acquisitive and eliminative modes:
1. Occupation: This occurs when someone takes possession of an unowned movable (including chattels) that was not yet appropriated (res nullius) or has been abandoned (res derelictae), and this appropriation is not prohibited by law. Do not confuse an unowned or abandoned thing with a lost thing. The latter should be returned to the owner or handed over to the authorities.
Occupation is presented in three ways:
• Occupation itself: aims at living beings and inanimate things (e.g., hunting, fishing, complying with administrative regulations and special laws).
• Discovery (lost things – res perdita – arts. 1233 to 1237 CC): detection of a movable lost by the developer; the owner will not be the person who discovered it, and they must restore it to its owner. If the owner is unknown, it should be delivered to the authorities. The only right of the discoverer is to receive a reward called Achádego, plus compensation for the conservation and transport of the thing. This reward may not be less than 5% of the value of the thing. However, the owner, rather than paying the sum, may choose to give up the thing, in which case the finder may acquire ownership of it. The Penal Code criminalizes the appropriation of things found and not handed over to the owner or the competent authority within 15 days.
• Treasure (something found – arts. 1264 to 1266 CC): the former deposit of coins or precious things, buried or hidden, whose owner has no memory. Rules:
– Owner finds it on their property: it belongs to the owner only.
– Any person finds it on others’ land and intentionally sought it without the permission of the owner: it belongs to the owner of the land.
– Incidentally, one finds it on others’ land: divided equally between the owner of the building and the person who found it.
2. Usucaption: This is a way of original purchase of movable property. The foundation is the same as the inspiration of real estate. The difference is within. The owner can, for purposes of adverse possession, add their possession together with their predecessor’s, as long as both are continuous and peaceful.
– Uninterrupted (continuous) and unopposed (peaceful) possession
A) Extraordinary Usucaption (art. 1261 CC)
– Without just title and without good faith
– 5 years
– Uninterrupted (continuous) and unopposed (peaceful) possession
B) Ordinary Usucaption (art. 1260 CC)
– Just title, good faith, and animus domini
– 3 years
3. Specification: This is the transformation of a movable into a new species because of the work or industry of the specifier, provided that it is not possible to reduce it to its original form (e.g., sculpture from a block of stone, polishing a precious stone, painting on a screen).
If all of the raw material belongs to another, the new thing belongs to the specifier if they are in good faith. If they are in bad faith, they lose the new thing in favor of the owner of the material.
If the value of the raw material is higher than the work done by the specifier, the thing will belong to the owner of the raw material, who must compensate the specifier for their work.
4. Confusion, Comistão, and Addition: These occur when things belonging to different people are mixed in such a way that it is impossible to separate them.
• Confusion: mixing of liquid or gas things (not to be confused with confusion of debt when the creditor and debtor are the same person – a personal right and not a real right). Examples: water and wine, alcohol and gasoline, nitroglycerin (TNT).
• Comistão: mixture of solid or dried things (examples: sand and cement).
• Addition: juxtaposition or overlap of one thing over another (e.g., paint on a wall, a valuable stamp in a collector’s album).
If the mixture is involuntary and impossible to separate, there is a communal need (or forced co-ownership). However, if one thing can be considered primary to the other, the ownership of the new species is assigned to the owner of the main thing, with the obligation to indemnify the other.
5. Tradition
Tradition (traditio rei) is the delivery of the movable by the seller to the purchaser with the intention to transfer ownership. The contract itself is not able to transfer ownership; only with tradition does this declaration become a real right. Tradition can be:
• Real: delivering the effective material thing.
• Symbolic: a representative act that reflects the transfer (e.g., delivery of car keys, delivery of the document corresponding to the property, as in the clause for the sale of documents).
• Ficta: no need to deliver what one already had possession.
• Constituto possessorio (already seen): occurs when one who had possession in their own name starts to possess on behalf of others.
• Traditio brevi manu: occurs when one who had possession on behalf of others starts to possess in their own name.
• Traditio longa manu: when the thing is made available to the buyer because it is impossible to hand-deliver it. Example: large machines.
6. Hereditary Succession – art. 1784 CC
Succession law can also generate the acquisition of movable property, be it legal or testamentary succession (by will, bequest, or codicil). Examples: inheriting a car by legal succession, receiving a library by legacy.