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Ownership – Acquisition, Proof and Extinction

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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.
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