Understanding Legal Possession and Property Rights

Posted on Feb 17, 2025 in Art

Legal Possession and Property Rights

Legal Possession: The power of an individual over a thing or property in the legal sense.

Requirements for Legal Possession

The three requirements are:

  1. The active subject is the owner of the property.
  2. The defendant must be in adverse possession.
  3. There must be an identity between the thing claimed by the actor and the one in unlawful possession by the defendant.

Possession: Manor and Legal Power

The concept of possession can be viewed in two ways: as a manor and as a legal power.

In the sense of legal estate, possession is understood to be a de facto power over a thing. Possession in this case means having the thing under control.

In the case of possession as a legal power, it is the power of the person over the thing. In other words, it is not an effective domination, but a power given by law (a possession of law).

Don Alberto Brenes Cordoba indicates that possession is understood as holding something under the power and will of a person or enjoyment of a right.

Essential Elements of Real Right of Possession

Two elements are essential if the individual has the real right of possession:

  1. The de facto power over the object.
  2. The power to detain him under his authority (Article 277).

Object of Possession

The object of possession is also known as the object of the right of possession. When speaking of the object of possession (within the right of possession), this object can only lie about things in a legal sense.

Things in the legal sense: It has relevance to the right for its usefulness as such.

Acquiring the Right of Possession

The full legal dominion of property rights is attached to the possession of the property. Regardless of ownership, one may also acquire ownership of the property. Art CC 279, subsection 2 (owned assets are inalienable).

Actions to Protect Property

Our legal system takes various actions to protect the property:

1) Common Stock

So called because they are set or discussed in declarative processes (effects produced by the above), res judicata which is divided into two res judicata and double jeopardy formal (where the sentence can be seen in other processes can be discussed in declarative processes, resulting in that you can not argue any more.) The declarative processes are divided into two: regular and shortcuts.

Ordinary Shares

Includes:

  1. Action for recovery
  2. Negatoria
  3. Publiciano

2) Third Party Actions

Protection of property when a third party takes away the property without the debtor (you’ll affect your right of ownership):

  1. Third party domain
  2. Better third party right

3) Special Actions

Other ways to defend the right of ownership or the mere possession:

  1. Eviction Action
  2. Injunctions

4) Actions Not Entailing Possession

Aspects are not related to the possession, but in terms of property boundaries, such as:

  1. Deslindes
  2. Demarcation
  3. Siding

Requirements for Filing the Publiciano Action

  1. The action must demonstrate that it is a right holder on the good that you requested is restored; the burden of proof lies in the testimonial.
  2. The actor must demonstrate that the property which is right holder is the same as has the defendant (the identity of the thing).
  3. The actor must prove that the defendant is an illegitimate holder.

Characteristics of the Right Neighborhood

  1. The confrontation of Roman law with a new concept of property rights.
  2. Principle of Relativity
  3. It has its structural basis in the property right
  4. The right neighborhood is ad hoc and not subject to the principle of legality.