Ownership

Acquisition of ownership Modalities of Acquisition of Individual Ownership . Generally, the law recognizes two types/class of acquiring ownership:  Original acquisition, and  Derivative acquisition . Ownership is said to be acquired through original acquisition when an individual acquires ownership over a given thing by his own, without depending on anyone's title/ownership. Ownership may be acquires in this manner over a thing which: - has never been owned, res nullius - has had owner but abandoned, res derelictae - has owner, but the new owner doesn’t depend on the pre-existing OP as a source . Derivative acquisition refers to the acquisition of ownership through transfer of ownership. This is a case of buying/taking the right rather than establishing original ownership. It is a derivative mechanism of acquiring ownership. It requires juridical acts and is dependent on the quality of ownership of the original acquirer. Original Acquisition of Ownership . The CC recognizes 4 modes of original acquisition of OP: - Occupation - Possession in good faith - Usucaption - Accession . Some apply to acquisition of OP only on corporeal movables, others to immovable only & some for both. Acquisition of OP by Occupation . No clear definition of the term in the CC . From a systematic reading of Art 1151 we can describe Occupation as: a mode of acquiring OP whereby a person becomes an owner of a masterless corporeal chattel by taking possession of the thing with the intention of becoming owner. . Thus, in order to become owner by occupation, the following elements must be fulfilled cumulatively: - The thing must be a corporeal movable - The thing must be susceptible of private appropriation - The thing must be masterless - The person must have taken possession of the thing - The possession must be with intention of becoming owner of the thing. Acquisition of OP by Occupation …. ctd. 1st, the thing must be ordinary corporeal movable. Occupation works only for corporeal chattels. It is not applicable for corporeal immovables (1194) and special movables 2nd, Not only that it should be corporeal chattel, it should be susceptible of private ownership. This is to say that: - Should be susceptible of appropriation: a thing without a master and that can be taken and controlled - Even if susceptible of appropriation, the specific thing should not be excluded by law from the domain of private OP. There are corporeal movable objects which are excluded from private appropriation: b/c either they are in the public domain or their OP is restricted to the state or select individuals. 3rd , the thing must be a masterless. Masterless things are three types: - Res nullius - Res derelictae - Lost & found things . Things that are res nullius or res derelictae are masterless and as such private ownership can be acquired over such things (Art 1151). They may be animals or inanimate things. What are things regarded as res nullius now a days. Acquisition of OP by Occupation …. ctd. .Lost & found things: • These are things upon which the owner has lost his possession involuntarily. • The ownership interest of such owners who lost possession of their object will not be extinguished as soon as they loss possession of the thing. • Rather, persons who found the thing have the obligation to publicize the fact of the find of the thing with the intention to call the true owner (Art 1154(1)). • The true owner’s interest will be protected by law for a certain period fixed by law; upon expiry of that period the thing will become a thing without a master & the finder will become owner by virtue of Art 1151; until the time limit expires the finder will be a possessor, not owner (Art 1155). • The lost & found things may be: captive animals, tamed animals, or inanimate objects. Acquisition of OP by Occupation …. ctd. .Lost & found things: …….ctd.  Captive animals: refers to wild animals which were under the control & possession/ownership of a person.  Tamed animals: domestic animals which by habit or training live in association with man; such animals have the habit of returning to their master’s house (animus revertendi) after going away.  Inanimate things: various material movable things • Then, the question is as of when do these things become masterless when the owner losses possession? • Generally, a given thing, is said to be masterless when the owner fails to recover the thing within the time provided by law after he lost possession. • The period fixed by law for reclaiming the varies depending on the type and nature of the thing lost. Acquisition of OP by Occupation …. ctd. .Lost & found things: …….ctd.  In principle, the period of limitation for reclaiming ownership of a lost corporeal chattel is 10 years (Art 1192). - This applies to: o Inanimate things o Tamed animals of: the equine/asine species or their inter-breads (donkey, horse, zebra, mule); the bovine specie (cow, ox, buffalo); camel  For captive & other domestic animals, the period of prescription is shorter: one month from the date they escaped.  In case of bees, the period of action is even shorter/non- existent/ Art 1153 Acquisition of OP by Occupation …. ctd. 4th, another requirement for acquisition of OP by occupation is possession of the thing. Without possession no Op by occupation. - Even if in the meantime there is transfer of possession from one person to another, the transferee will benefit from the running of the time while the thing was in the hand of the transferor (Art 1150(1)) - The possession should be clean. 5th, the intention of the person who possesses thing. The person who takes possession of a masterless thing should do so with intention to become owner.  When, all these conditions are fulfilled, then the person will become owner by occupation. Acquisition of OP by Occupation …. ctd.

EXCEPTIONS: . - Treasures (Art 1159): things of which no body can be shown to be owner and discovered after the laps of 50 years since they are buried in the land or another thing. For these types of things Arts 1151 & 1192 are not applicable. The ownership goes to the owner of the land or the owner of the thing in which they are found. - Antiques & archeological excavations(Art 1160): not subject to the rules of Arts 1151 1192. These things fall under the public domain and are subject to special laws. Acquisition of OP by Possession in Good faith . Possession in good faith is a principle by which a person concluding a contract with a view to acquire ownership of a corporeal movable will acquire ownership, even if the person from whom he took possession of the thing have no ownership right over the thing and as such cannot transfer the thing. . This mode of acquisition of ownership is an exception to the fundamental principle of law of property relating to transfer of ownership. . As a matter of principle it is only the owner who can transfer ownership as part of his prerogative of being an owner. No other person than the owner can transfer ownership title over a thing to another person. Hence the Latin maxim: nemo dat quod non habet (no one can transfer what he does not have, a transferee can take no better right than the transferor) Acquisition of OP by Possession in Good faith …ctd. . So, it is only the person who has the ownership that can transfer ownership title to another person; conversely, any person who claims that ownership has been transferred to him can have a valid ownership only if the person who pretends to transfer to him has ownership title. . Thus, ownership title can be transferred to another person if and only when the owner (in person or by agent) voluntarily undertakes to transfer the ownership; no other person can do that; if other person pretends to be owner and transfers OP over a thing, then Art 1206 (right to reclaim) will apply. . The above is the principle regarding transfer of ownership! Acquisition of OP by Possession in Good faith …ctd. . The principle is not, however, absolute; it has exceptions . There are exceptional cases provided by law where ownership title can be transferred without the consent of the owner. • Court order – attributable to the owner; • Expropriation – by the state – for public interest • Possession in good faith . Possession in good faith is an exception to the above general rule b/c according to the possession in good faith a person who has no ownership title over a thing succeeds in transferring/creating ownership to another person & the transferee succeeds in acquiring ownership right which the transferor does not have. Acquiring OP from non-owner! Acquisition of OP by Possession in Good faith …ctd.  Requirements for the acquisition of OP through possession in good faith – Art 1161 - There must exist a contract; - The contract must relate to ordinary corporeal chattels; - One of the parties who purports to be a seller must be non-owner; - The part who intend to become acquire ownership through the transaction should be in good faith 1st, for acquisition of ownership through possession in good faith to work, the transfer of the thing from the non-owner to the good faith buyer must be made by contract. • The contract must be valid; • The contract must be for transfer of ownership; • The contract must be for consideration (in cash, in kind, to pay debt) Acquisition of OP by Possession in Good faith …ctd. 2nd, the transaction must relate to ordinary corporeal movable. • This mechanism of acquiring OP does not work for corporeal immovables and special movables; • Should not form part of the public domain; 3rd, the party intending to sale the thing must be a non-owner: non- owner possessor or holder 4th, the party intending to become owner must be in good faith the good faith of the buyer must exist at the time of concluding the contract but also at the time of taking possession of the thing. Acquisition of OP by Possession in Good faith …ctd.  But, what is good faith? • In general, to be in good faith mean to honestly believe that an alleged or stated fact is true. • In contract of sales it means believing that ‘the seller is the owner of the thing’ Art 1162(1) . As good faith relates to the mental state of the buyer it is difficult to prove it. . In order to mitigate the problem of proving the existence of good faith the law has provided a way out: presumption of good faith of the buyer (Art 1162(2)) . the buyer is presumed to be in good faith at the time of entering into the contract as well as taking possession of the thing. . The presumption is, however, rebuttable; can be disproved by the previous owner by adducing evidence which show that the buyer was not in good faith. 5th, the person who claims to have become owner must have taken possession of the thing. Recall the various ways of transfer of possession Acquisition of OP by Possession in Good faith …ctd. . So, if all the above requirements are fulfilled then there is possession in good faith & the possessor in good faith will acquire ownership right over the thing even if the transferor has no such right (Art 1161). . And the previous owner cannot reclaim the thing from the third party possessor in good faith (Art 1164). In other words, the previous owner cannot invoke Art 1206. . Remedy for the previous owner: o Showing that the third party acquirer of the thing is not a good faith possessor; o Showing that the thing acquired by the possessor in good faith was originally stolen from him. (Art 1165); Remedy for the good faith buyer? o under law of obligations – contractual or extra-contractual and unjust enrichment law. Acquisition of OP by Usucaption . Also termed: acquisitive prescription taking by usage adverse possession (Common Law) . In modern legal systems a person’s legal status or position with regard to a certain right (in rem or in personam) may be affected or limited by the lapse of time in two main ways, which are referred to as: Period of limitation & prescription . . Period of limitation applies to actions to enforce rights and prescription relates to the rights: Acquisition of OP by Usucaption …ctd. . By period of limitation we mean if a legal action to enforce a right is available to a person and he failed to act on it within a certain time, then that person is debarred from bringing the action thereafter. o But it is only the possibility to bring the legal action that is barred; the right on which the action is based still survives; it is unenforceable but not extinguished. o The practical consequence of this is that acts done in pursuance of the right remain valid. o For example: If ‘A’ owes ‘B’ 500 Birr but ‘B’ fails to claim it (bring legal action) within the legally prescribed time limit (10 years from the date of maturity of the right), then he will be barred from claiming it latter on. But if ‘A’ not being aware of the running of the period of limitation and pays to ‘B’ the sum due to him, it will not be considered as a payment that is not appropriate (unjust enrichment on the part of ‘B’. Since it is not the right that is extinguished by the running of the period of limitation but only the possibility to bring legal action that is barred, it will not affect the validity of the payment. Acquisition of OP by Usucaption …ctd. . The lapse of time in the form of prescription, however, affects the right itself. . There are two types of prescriptions: Extinctive prescription & Acquisitive prescription. . Extinctive prescription merely extinguishes the right without giving corresponding right to anyone else in the process. This mode applies to both in rem rights and in personam rights but it is the only mode in personam rights are extinguished. . Acquisitive prescription: in the process of extinguishing the right operates to create a new right for another person. This mode applies to in rem rights only. Acquisition of OP by Usucaption …ctd. . Usucaption as a means of acquiring original ownership relates to the later type of prescription: acquisitive prescription. . It is a situation whereby a person is permitted to acquire definite ownership right through prolonged possession, as the right of the previous owner extinguishes through that time. . This mode of acquisition of ownership applies only to corporeal immovables; not for incorporeals or corporeal movables. Acquisition of OP by Usucaption …ctd. . Requirements for acquisition of OP by usucaption (Art 1168 & 1169) 1st, prolonged possession of the immovable:. o the possession must be an uninterrupted by any claimant o it must be free from defects of possession. o the prolonged possession should not necessarily be in the hand of a single person; the rule on junction of possession applies (Art 1150(1)). 2nd, prolonged payment of tax of ownership by the possessor in his own name; for 15 years (Art 1168). . Although usucaption is meant to apply for immovables in general, given that now land is collectively owned by NNPs, its application is limited only to buildings. . Further, ususcaption, in addition to being a source of ownership, it also serves as proof of ownership (when document is lost for various reasons) Acquisition of OP by Accession . Accession is a mode of acquisition of OP that applies for corporeal movables as well as immovables. . Accession as a means of acquiring OP may be defined as a process by which there will be an addition to the object of someone’s OP through attachment, fruit, offspring or other forms of increment to an object of OP. . Accession, which may result from acts of nature, acts of man or both is of different type: o Accession of fruits o Accession of movable to an immovable o Accession of movable to another movable Acquisition of OP by Accession …ctd. A - Accession of fruits (Arts 1170-1171) • By fruit here it means - Periodical products of a thing without diminution to the principal thing (animals, plantations, industrial products) - Anything which may according to usage be derived from a thing by cutting, extraction, and other civil and industrial fruits such as rent, profit, interest, etc. • The principle in regard to ownership of fruits is that the owner of the principal thing acquires right of ownership over the fruit. Art 1170(1) • Exception (Art 1171): in case of fruits obtained by breading, the owner of the mother acquires the ownership. Acquisition of OP by Accession …ctd. B - Accession of movable to an immovable Arts 1172- 1181 • The accession in the form of attachment of crops, trees, and building materials into land is referred to as accession of movables to immovable. • The ownership of crops, trees, and buildings planted or erected on the land of another is determined by the will of the user of the land. - When the plantation of trees or crops or the erection of a building on the land of another person is done in spite of his objection or when he was in a position to raise objection, the person who planted crops/trees or erected building shall have no right (Arts 1172, 1175, 1178) Acquisition of OP by Accession …ctd. B - Accession of movable to an immovable Arts 1172-1181 …………… - When the plantation of trees or crops or erection of the building on the land of another takes place without objection by the land holder, the planter or builder will have a right but severely limited (Art 1173, 1176, 1179). • Another situation of accession of a movable to an immovable is when the land holder erects building, plants trees or crops using materials belonging to another person. • In such cases the holder of the land will acquire the ownership the plantation or building. But will be obliged to pay compensation to the owner of the seedling or building material. Art 1181 Acquisition of OP by Accession …ctd. C - Accession of movable to another movable Arts 1182-1183 • The accession of one movable to another can take one of the following forms: o specification (transformation) o adjunction (embodiment) o merger (comingling, confusion, or mixture) o Specification (transformation): refers to the act of making a new thing with materials belonging to another person using own labour. o Results in the creation of a new thing: the materials are so united that the identity of the resulting thing is totally different from the original material. Who owns such a thing? o Art 1182: the value of the labour used to make & the value of the original material will be compared: if value of labour is greater, then the labourer; if value of the original materials is greater than labour, then the person who transformed the things will become owner, if in good faith. Acquisition of OP by Accession …ctd. C - Accession of movable to another movable Arts 1182-1183 ……………… o Merger (confusion): refers to the mixing together of two dry or liquid matters belonging to two different owners. Here, there is no creation of new thing; the identity of the merged substances is the same as the resulting thing. o Adjunction (embodiment): refers to the union of two things belonging to different owners; the things form a single whole, though each of them is a distinct & recognizable part of the whole. o The law treats merger and adjunction under Art 1183. • If principal-accessory relationship is created, then the owner of the principal thing will become owner. • If it is difficult to identify the dominant component, then joint ownership. Derivative acquisition of Ownership  Transfer of ownership: • This is the only form of derivative acquisition of ownership. • Transfer of ownership refer to the transfer of ownership title of a person to another person; the ownership title of the transferee depends on the ownership title of the transferor. o Transfer of ownership may be made by: - Law: in case of intestate succession or if the will is not enforceable; by court order to pay; foreclosure by banks. - Act of the owner: unilateral act (will) or bilateral act (contract) o So, for transfer of ownership to take place one of these must exist as a cause. Derivative acquisition of Ownership ….ctd. o In addition to the existence of one of these as a cause of transfer of ownership there are additional requirements that must be fulfilled for valid transfer of ownership. o These requirements depend on the nature of the object of ownership: - Ordinary corporeal movables - Special corporeal movables - Immovables  Corporeal movables (ordinary corporeal chattels): - One of the grounds for transfer of ownership must exist: law or juridical act. - The transferee must take possession of thing (Art 1186(1)) Derivative acquisition of Ownership ….ctd.  Special corporeal movables - More stringent requirements apply with regard to transfer of ownership of special corporeal objects . Special movables include: motor vehicles, ships, aircrafts, train, TV set, construction machinery, - One of the causa for transfer of ownership must exist: (operation of law or juridical act) - To effect transfer of ownership, special requirements indicated in laws concerning these goods should be observed. These includes: written agreement & registration with the appropriate government authority Derivative acquisition of Ownership ….ctd.  Corporeal immovables . In order to transfer OP of corporeal immovable , - One of the causa for transfer of ownership must exist (Art 1184); that is by: o Law o Act of the owner (testament or contract) - If the transfer is to be effected by act of the owner, there are special formality requirements: the act (contract or testament) has to be in writing (Arts 893, 1723(1), 2443, 2877) & has to be authenticated (by F-DARA in the federally administered cities of AA & DD) - In all cases the ground that caused the transfer of OP must be entered in the register of immovables(Arts 1185, 1567 & 1568) Derivative acquisition of Ownership ….ctd.  Corporeal immovables ……… - The purpose of registration is to give publicity as to who owns a given immovable. - The registration will have the effect of protecting: o owners o third parties who enter into transaction with respect to the immovable - Overall, it creates security of tenure and transaction - The problem is the rules governing registration of immovables (Arts 1553 – 1646) are suspended by operation of Art 3363 of the CC. - So, we do not have national system of registration of immovables. This service is rendered by municipalities in urban areas. - In the absence of such a national system for registration of immovables, should the requirement of entry into register of immovables be a validity requirement? Proof of Ownership  How do one prove ownership? . Again, it depends on the nature of the object of ownership  Ordinary corporeal movables: o Showing possession; if a person proves that he is a possessor, then he is presumed to be owner (Art 1193(1)); the presumption is, however, rebuttable (Art 1193(2)).  Special movables: o According to the applicable special rules; normally production of title document required.  Corporeal immovables - Production of title document from the relevant administrative body (Art 1195); it can be rebutted by production of other evidence. Extinction of Ownership . By extinction of OP we mean the juridical fact whereby the right of OP of a person ceases to exist in relation to a given object of OP. It means death/termination of the right for the owner, not necessarily destruction of the object. . Extinction of OP may be Relative or Absolute o Extinction OP is Absolute when the right passes once and for all with no chance of surviving presently or in the future. Eg, when the object is destroyed, damaged or consumed. o Relative extinction occurs when one’s OP expires or is transferred and another person acquires OP in exclusion of the previous owner. Many instance of acquisition of OP cause relative extinction of OP. Extinction of Ownership ….ctd. . Extinction of OP whether relative or absolute varies depending on the nature of the object of OP:  Ordinary corporeal movables: o When object is destroyed; o When the thing losses its individuality; o When the owner abandons his right; o When another person acquires the right to own the thing; o When the right is transferred to another person; o When extinctive prescription becomes operational;  Special movables ?  Corporeal immovables - Loss of the thing (Art 1188): - Acquisition by a third party (Art 1189): usucaption and accession - When struck of the register of OP (Art 1190)