THE ROLE OF POSSESSION IN PROPERTY RELATIONS

Abstract

The main objective of this paper is to examine the role of possession in property relations. In
order for the role of possession to be explained, it is important to make a clear distinction
between the exclusive physical control over movable or immovable things that is possession, and
the direct exclusive legal power over movable and immovable things that real rights provide.
From theoretical standpoint possession can be regarded as having a dual role. One being a
category regulated by law independent form real rights since possession as such is not a real
right, and the other being an ingredient of ownership since the right of ownership entitles the
owner to possess, use and dispose of the object of ownership. This duality of roles creates a
complex and interlaced relationship between possession and real rights which is subject to
analysis in this paper. Leading with the notion that possession may or may not result from having
a real right the paper addresses several issues such as: the importance of differentiating between
possession and the right to possession and its practical implications in dispute resolution; the
importance of possession as a legal category; the link between possession and the acquisition and
exercise of real rights, and the issue of possessory versus petitory action. Ultimately, the goal of
the analysis of such important issues is to evaluate how the role of possession has evolved in
contemporary property law.