Essential possession – definition and examples

adwokat-sobolewski.pl 1 year ago

Types of ownership

Pursuant to Article 336 of the civilian Code, the holder of the property is both the 1 who actually controls it as the owner (the self-employed owner) and the 1 who actually controls it as the user, the pledge, the tenant, the tenant or the another right with which the circumstantial authority of another individual is connected (the dependent owner).

This discrimination is crucial for institutions sitting, since the holder may get ownership of the property after the period of possession (Article 172 kc).

Implicit possession — definition

A self-employed holder "executes powers" consisting of the content of the property rights referred to in Article 140 k.c., i.e. uses items excluding another persons, collects benefits and income, is considered to be entitled, for example, to make decisions on how to manage things.

According to the settled views of doctrine and jurisprudence, it is essential to establish 2 elements: physical and mental.

Physical component of spontaneous possession

The physical manifestation of self-sustaining (corpus) is characterized by the effective, in an economical sense, usage of things or at least the existence of a factual condition which creates specified use.

The will for self-holding (animus)

The voluntary manifestation of self-sustaining (animus) refers to a certain intellectual experience mastering a thing that is nothing but the will to regulation “as the owner” which, however, must be manifested through objectively discernible manifestations of behavior.

The will to have (cum animo rem sibi habendi) is an essential component of possession leading to sitting. Ownership is characterized by the fact that the holder is in charge of the thing to the degree that the owner does so, utilizing the actual ability to control the thing to which the owner is entitled (so: order of the ultimate Court of 7 May 1986, III CRN 60/86, OSNCP 9/87, item 138).

It is so essential for the property holder to carry out factual acts indicating the independent, actual, independent state of power of another person.

Appreciations of spontaneous possession

Therefore, having a self-contained possession can separate the will origin (animus), with the actual will of the holder, which determines the nature of possession itself, being determined primarily on the basis of outward manifestations of possession.

It is important, however, that, in order to talk of a self-employed person, the applicant for a sitting must be continuously in a situation that allows the owner to carry out the activities which the owner could carry out.

It is not crucial whether the holder performs circumstantial activities in relation to things, but whether he has the ability to carry out them without, for example, a claim to reconstruct ownership. The existence of this anticipation prejudges the existence of possession. The actual power characterizing the essential possession is active erstwhile a certain individual is in a situation that allows him to usage things, and in specified a way that it is owned by him (so: The territory Court of Tarnów in its decision of 5 November 2020, Case I Ca 579/19).

Supreme Court in its order of 24 September 2020 Ref. Act IV CSK 33/19 considers that, although, in the light of Article 336 k.c., the sole intent of possession is to establish the nature of the power: whether it constitutes an essential possession (must sit) or not, it may require recourse to the grounds for taking possession of things and a number of another circumstances, for example. The specified fact that a certain individual is farming the land does not let to find whether it is the ownership of the land (self-holding) or the usage of the land in the lease (subsidiary property) or the provision of a service commissioned by the owner, tenant or individual else.

In its order of 12 February 2014, the IV CSK 271/13, LEX No 1444459, the ultimate Court stated that the determination of the nature of the holding (whether it is spontaneous or dependent) is based on outward manifestations of possession and must always mention to the circumstances of a peculiar case. For example, the following are listed as manifestations of the property ownership:

fence of the land plot,
construction or another management of the plot,
ensuring that it is maintained in a clean state,
making another investments,
collecting benefits
payment of real property public tributes.

Presumption of possession

The possession is bound by the presumption set out in Article 339 k.c. This provision presupposes the existence of a self-contained entity that proves that it actually controls the thing. Thus the ruler of the thing is relieved of the burden of proof of the kind of possession. But it must be added that this presumption is touching and can be overturned.

Change from dependent to spontaneous

There is no regulation in Polish law that no 1 can change his own kind or title. Therefore, the subsidiary holder can transform its ownership into a self-contained and vice versa (yes: ultimate Court order of 12 March 1971, III CRN 516/70, OSPIKA 1971, No 11, item 207), but the effectiveness of specified a conversion requires the holder to do so unequivocally, i.e. to show the change in a visible way to the environment (such as: Decision of the ultimate Court of 1 June 2017, act mention I CSK 587/16).

Therefore, the subsidiary holder can transform its ownership into a standalone (order of the ultimate Court of 12 March 1971, III CRN 516/70, OSPIKA 1971, z. 11, item 207, with the discussion of A. Szpurar and W. Wanatowska, NP 1972, No. 7-8, p. 1152), but the effectiveness, from the point of view of sitting, of specified a conversion requires the holder to do so openly, i.e. in a non-ambiguity manner, to manifest the change in a way visible to the environment, as the owner, who knows that he has issued the property in possession by a title which does not pose a threat to the failure of the law, must know that, at a given moment, due to the apparent behaviour of the holder, his law becomes in danger.

Furthermore, it is besides essential to find at what point this change of intention (animus) of the holder started, as this is essential for the calculation of the time limit of the sitting (yes: judgement of the SN of 12 May 1959, I CR 167/59, OSNCP 1961, No 1, item 8; judgement of the SN of 25 March 1999, III CKN 214/98, LEX No 578040; order of the SN of 20 June 2012, I CSK 561/11, LEX No 1215403).

A change which has not been demonstrated, limited to the holder's consciousness alone, is legally ineffective. While the owner who wishes to hold his right does not should be active in relation to things, the holder who wishes to get a thing by sitting must manifest his authority over the thing (so does the ultimate Court in its decision of 18 October 2013, III CSK 12/13, LEX No 1413547).

Settlement of doubts in favour of the owner

In judgement of 28 October 2003, P 3/03 (OTK 2003, No 8, item 82) The Constitutional Court argued that according to the dominant view of doctrine and jurisprudence, possession is not of the nature of a subjective law, since it is simply a factual state. It is so unacceptable to compare, on the same level, the level of legal protection afforded to the owner of the property in question and to the self-employed holder in the course of the sitting period.

The Court has so concluded that it is unacceptable to interpret the legal rules forming an institution of sitting in an extension manner. Emphasising that the institution is simply a far-reaching derogation from the rule of inviolability of the property right, it pointed out that any uncertainty should be interpreted in favour of the protection of property (other property rights), regardless of whether it concerns the ownership (proprietary rights) of individuals, local government units, the Treasury or another entities.

Foreign departure and change in the kind of possession leading to sitting

In household relations justifying the exercise of care over the property of household members (e.g. due to a abroad departure), it is essential to show unequivocally the change of relation with the property on the part of the holder – the holder should clearly manifest outside that he will no longer have the property of the alieno nomine, but for his sole benefit – suo nomine (yes: ultimate Court order of 12 May 1959, I CR 167/59, OSNCK 1961/1/8; ultimate Court order of 29 September 2004, II CK 550/03, nonpubl.; ultimate Court order of 11 October 2013, I CSK 5/13 non-publ.; ultimate Court order of 16 October 2015, I CSK 885/14, non-publ.).

Determination of holding kind and cassation complaint

Although the determination of facts relating to the kind of power exercised over a thing is simply a substance of fact, the assessment of whether these facts justify the uncovering of a material or dependent possession is simply a substance of substantive law and may be the subject of charges based on the first cassation basis (yes: order of the ultimate Court of 4 April 2012, I CSK 360/11, non-publ., ultimate Court in the order of 24 September 2020 Ref. Act IV CSK 33/19).

Dependent ownership

It is essential to separate from possessing a self-employed property (non-ownership) which is exercised in the field of law with which certain authority over another person's things is connected, e.g.