Real Rights and Possession in Property Law

Understanding Real Rights and Property Law

Real rights create a direct and immediate relationship between a person and a thing. This enables the subject to exercise power over a good and is susceptible of being opposed to all (erga omnes). To differentiate, a personal right arises from a relationship between two subjects or persons, whereas a real right is formalized between a person and a thing. To every personal right corresponds a personal duty, whereas no specific obligation corresponds to real rights.

Enumeration of Real Rights

Real rights can only be created by law. The following are recognized as real rights:

• Domain (ownership)
• Condominium (co-ownership)
• Horizontal property
• Usufruct
• Use and habitation
• Active servitudes (easements)
• Mortgage
• Pledge
• Antichresis

Classification of Real Rights

• On one's own thing: Domain and condominium.
• On an alien thing: Usufruct, use and habitation, and active easements.
• As a warranty (security): Mortgage, pledge, and antichresis.

Possession in Property Law

There will be possession of things when someone has a thing in their power with the intent to exercise a property right. Possession is characterized by the existence of two elements: one material (corpus) and one psychic (animus).

• The corpus involves the actual physical detention of a thing.
• The animus is the intention to have that thing as an owner.

Types of Possession

Possession can be classified as:

• Legitimate: With the right to possess.
• Illegitimate: With no right to possess, being without a title, or acquired inadequately.
• In good faith: When, out of ignorance or mistake of fact, the possessor believes in the legitimacy of their title.
• In bad faith: When they lack the conviction of its legitimacy.
• Vicious (vices): Which is a crime, including:
  • Violent: Gained by the use of force.
  • Underground (clandestine): Taken through hidden acts or in the absence of the holder.
  • Breach of confidence: When the thing was received with an obligation to return it.

Acquisition of Possession

Possession is acquired by:

• Tradition: Where one party delivers the thing and the other receives it.
• Apprehension: Through the occupation of a thing without an owner.
• Succession: The transmission of rights to the heirs of a holder.

Effects of Possession

• Allows the acquisition of ownership by usucapion (acquisitive prescription).
• The holder may exercise actions to protect their possession (possessory actions).
• Regarding movable things, it creates a presumption in favor of the holder to take ownership of it.

Tenure and Detention

Tenure is actually holding a thing while recognizing another's ownership; it is a simple holding of the thing. Tenure is characterized by a single element: the corpus.

Holders of the thing include: the tenant, the borrower, the depositary, and the trustee. The tenant and the borrower have the right to use the thing, whereas the depositary and the trustee are not entitled to use it.