Possession
In ORDER TO POSSESS
YOU MUST HAVE
Civil Law Property:
- Prof. John A. Lovett
Created By:
- Gavin Giosa
ANIMUS intent to possess as owner for
oneself, and not for anyone
else or not with the permission
of anyone else
CORPUS physical control and
detention, actual corporeal
possession
Possessor's
Immediate
Benefits
Automatically
treated as
provisional owner
[even if not]
Accession rights,
rights to natural
fruits, etc.
Lost by:
1) abandonment OR
2) Eviction w/ out
recovery in 1 yr
RIGHT TO
POSSESS
CAN BRING
POSSESSORY
ACTION
(1) Possession at the
time the disturbance
occurred
FOUR ELEMENTS
REQUIRED TO BRING
A POSSESSORY
ACTION - CC 3658
Advantages
(3) Possessory Action
instituted within a
year of the
disturbance
(4) Disturbance was one:
(a) In Fact
OR
(b) In Law (CC 3659)
Relief
MOST IMPORTANTLY can tell defendant that they have 60 days to
bring Petitory Action or they are forever
barred from doing so. See CC 3662
from previous owner
which means two
things:
IN LAW =
Execution, recordation,
registry or continuing
existence of record of any
instrument which asserts
or implies a right of
ownership or to the
possession of immovable
property . . . or any claim
or pretension of ownership
or right to the possession
Hard to do because petitory action is
because someone is in possession of
their property for at least a year
(maybe longer), but it is still possible
IF PETITORY ACTION IS SUCCESSFUL AND
ABLE TO PROVE THEY ARE OWNER POSSESSOR HAS CLAIM TO ACQUISITIVE
PRESCRIPTION (unless it is a declaratory
judgment action)
If no common owner must prove a title good against
the world
Pure Oil v. Skinner
Possessor reasonably believes in
light of objective considerations
that he is owner of thing he
possesses (Phillips v. Parker)
30 YEAR ACQUISITIVE
PRESCRIPTION CLAIM
Public
Begins to run Day After
Take Poss. w/ intent to
own
10 YEAR ACQUISITIVE
PRESCRIPTION CLAIM
Must Have All 3
Good Faith
(Presumed)
must prove five
attributes of
possession
Juridical act, such as a sale,
exchange, or donation sufficient
to transfer ownership or another
real right
Just Title
Object itself
is Susceptible
to A.P.
Peacable
Uninterrupted
IN FACT =
an eviction, any other
physical act which
prevents enjoyment or
throws obstacles in way
of enjoyment
by Acquisitive
Prescription
if it's a common owner good to go as long as you
have title from them
Continuous
1 yr.
if no action in 60 days,
Possessor becomes owner
against the defendant
60 day clock NOT effective
against the State. - Todd v.
State
IF DEFENDANT DOES BRING A
PETITORY ACTION - They must
prove they acquired ownership:
Key Case: Liner
v. LL&E
(2) Possessed peacefully
and undisturbed for one
year prior to disturbance
SUCCESSFUL POSSESSORY
ACTION GETS POSSESSOR
(plaintiff):
Benefits
Note - Peloquin v. Calcasieu
Parish - Conversion of Cat family couldn't prove
ownership but could prove
damages (Presumed
owner via possession)
Unequivocal
must be an act
translative of
ownership
must be
written
must be filed for
registry in
conveyance records
must be in
valid form
must actually
describe property in
dispute
if there is a just title
problem, there is a way
out through Boundary
Tacking - allows you to
get around the fact that
someone who looks like
a good faith possessor
because they acquired
ownership from a
previous owner but their
title doesn't describe
property in dispute might have claim for
boundary tacking if they
can show they possessed
within visible bounds
and connect their
possession back to
previous owner (ex. prev
owner fenced in
disputed property and
possessed before sale.)
Justification/Models of Acquisitive Prescription
Administrative model
o AP cures honest but common conveyancing errors
o Advantages and Rationales
▪ Helps good faith possessors and purchasers who honestly and reasonably thought they had title
▪ Encourages people who acquire property to record their acts translative of title in public records
• Encourages a degree of carefulness
▪ Conserves judicial resources by recognizing long term possessors as owners rather determining record ownership
o Disadvantages and counter arguments
▪ Overinclusive: benefit bad faith possessors w/ no pretense of title
▪ Does not provide any incentive to bad faith possessors to use public records
▪ Title insurance could and does serve the same function
▪ Other legislative innovations, like marketable title acts, could also serve this function
Developmental Model
o Wake up! Don’t sleep on your rights
o Advantages and rationales
▪ Encourages people to engage in productive use of land and immovable property and discourages absentee owners
from “sleeping on their rights”
▪ Rewards productive use, punishes passivity
▪ Encourages people to be engaged managers or sovereigns of their land
o Disadvantages and counter arguments
▪ Might punish landowners interested in passive use of land and in ecological preservation
▪ Might lead to over-development
▪ Might punish landowners who acquire land as long-term investments without interest in immediate use
speculative acquisition and land holding
Limitations Model
o Advantages and rationales
▪ Establishes some time limit on old, potentially stale claims that are costly to sort out
▪ Avoids need to rely on faded memories, lost evidence
▪ At some point in time, possessors (and any person potentially affected by someone else’s adverse claim, whether
arising in contract, tort or property law) need certainty
▪ The entire legal system needs the certainty and stability that results from statutes of limitation
o Disadvantages and counter arguments
▪ Modern land registration systems preserve complete and pretty accurate records of title, property interests, and
land transfers
Personhood or Reliance Interest model
o Advantages and rationales
▪ Recognizes and honors strong psychological connection between possessor and object of possession
▪ Preserves social peace and discourages self-help
▪ Honors reliance interests that develop over time based on possessor’s expectation of continued possession and
community recognition of possession
▪ Recognizes value of investment of labor in things
o Disadvantages and counter arguments
▪ If we did not have AP, then strong psychological connection wouldn’t develop as quickly
▪ If w did not have AP, reliance interests could not develop
▪ Might encourage people to engage in unauthorized trespass and landgrabs
▪ May create disincentives for people to use real estate markets to acquire interests in land, which we would
encourage because markets are generally efficient