The most extended in rem right is property because its essence lies in legal exclusivity, thus containing all of the attributes (usus, fructus, abusus). In what follows, I will analyse how a simple state of fact may lead to the acquisition of the property.
In Roman law possession was recognized as a simple factual state able to generate a series of legal effects (Hanga, Bob, 2011). Today, possession is known as the direct exercise of a right, the bearer acting as if he or she is the actual owner. Thus, in order to have possession, there are two cumulative conditions to be met: a) the existence of the material element (lat. corpus) which represents the concrete exercise of a right and b) the psychological or intentional element (lat. animus) which represents the intention of the bearer to be its master. The material element implies the execution of material acts, such as the destruction or disposal of the estate, as well as legal acts, such as the outright sale or the gathering of the income produced by the asset.
The intentional element is important in civil law by reference to third parties. For the existence of possession it is not enough for the bearer to consider himself or herself as being the owner, but for third parties to perceive him or her as exercising a right over the possessed property. In consequence, the intentional element must be ascertained and verified by a third party.
1. Movable property
Article 937 of the New Civil Code regulates the acquisition of movable property through possession that is exercised in good faith. As it is specified in the first paragraph, a title is needed for the acquisition of movable property, more precisely an onerous transfer of property. This title is represented by a contract which must be concluded with a person who is not the real owner of the goods. If the contract were concluded with the real owner, property would be gained as an effect of the contract, which is intended to transfer the property. The article imposes a series of conditions:
Firstly, as I stated above, it requires a contract which has the power to transfer property. The contract must be effective, the legal provision only covering the case when the buyer is mistaken about the identity of the owner, and no other irregularities which may compromise the contract. This means that it is not enough to have a putative title, because the error must bear on the quality of the owner of the property in question, not on the existence of the title.
Secondly, the purchaser must act in good faith. Article 938 defines good faith as being a legitimate or excusable error; therefore, the purchaser must not know the fact that the seller is not the real owner. It is worth mentioning that the title of the third party cannot be dissolved even if the contract violates a clause prohibiting the selling of the good, as long as the buyer acted in good faith. However, he/she may rely on this article only when the clause is conventional, the article not being applicable to the cases when the inalienability is established by legal provisions.
Thirdly, the good must be a movable asset and the purchaser must take possession of it.
Lastly, the legal situation of the asset in question must not be subject to a system of publicity. Such examples include the vessels and airplanes which are subject to special formalities, as well as the accessories of a real estate specifically shown in the paragraph (4) of the same article.
2. Real estate
Regarding the acquisition of real estate, the effect of possession based on a land register is that it provides a title of real estate property. The possession based on a land register is a simple state of facts, resulting from the listing in the Register of the right on behalf of a certain person – the possessor. Thus, Article 900 of the New Civil Code sets up a rebuttable presumption that the person listed in the Land Register is the real owner of the estate. The contrary proof will be admitted under the conditions mentioned in Article 900 paragraph (3), namely by exercising the action in correcting the register. This action is a personal one, which implies the correction of the inaccurate mentions in the land register.
The possession based on the register represents a means of solving conflicts between competing titles derived from a common author. Article 891 corroborated with Article 900 paragraph (1) point out that the first to register his right in the land register will be preferred by the law, being considered the real proprietor.
3. Comparative analysis between the two types of possession
Article 937 corroborated with article 901 establishes the so called ‘theory of appearance’, which is created by the immediate possession in the case of movable assets and possession based on the register in the case of the real estate. Both types of possession are similar regarding this aspect – they create the appearance that the possessor is the legitimate owner of the good, having a valid title.
Article 981 corroborated with article 1275 establishes a means of solving the conflicts between competing titles deriving from a common author - that is to say, the situation when a person sells the same good to multiple separate buyers. In terms of the possession of movable property, the first one who, in good faith, takes possession of the good is considered the real proprietor, even if he was not the first buyer in the chain of sales.
In terms of possession of real estate, what matters is the information listed in the Land Register. The one who registers himself or herself first as being the owner is considered the real proprietor, even if his title has a later date.
Article 931 corroborated with articles 930 and 939 cover the acquisitive prescription of movable assets and real estate, both including factual possession. In the light of the New Civil Code, the acquisitive prescription of real estate is not a means of gaining property, unlike the previous regulation. There is only an extinctive prescription (statute of limitations) affecting the right to file the action in correcting the errors of the land register.
In conclusion, the possession of movable assets and that of real estate are very much alike regarding the effects and the purchasing of property. The power of a simple state of fact has a great relevance in legal terms because it is the foundation of the property law. The legislator has chosen to legally protect possession because protecting the possession means protecting the property.