Presumptions of Rights Arising from Possession

Real Estate and Property

Prepared by: Constantinople

Holding a thing may, in some circumstances, give rise to a presumption of entitlement. The scope of these presumptions depends on whether the property is movable or immovable and the capacity in which the person possesses it.

A Presumption Is Not Definitive Entitlement

A presumption is a starting point that assists in assessing evidence; it may be rebutted or a special rule may apply. The presumption of ownership attached to possession of movable property does not make every user of immovable property its owner independently of the land register. The source of the claimed right and the particular relationship must be examined.

In What Capacity Is It Held?

A tenant, depositary or borrower may use the thing under a relationship recognising another person's right. This differs from possession as owner. Previous possession, whether delivery was consensual and how the thing left possession also matter in disputes over recovery or acquisition in good faith.

Effect on the Evidence Plan

Delivery documents, purchase records, agreements and previous entitlement are compared together. The absence of a document does not make a presumption unlimited. Registration for immovable property, factual control for movables and special exceptions must be distinguished correctly. The link between the outcome sought and the presumption relied on must be clearly established.

Documents to Prepare for an Initial Review

Send each document in its entirety as held by you, rather than only its first page or a screenshot. We determine, according to the file, what authority is needed to obtain missing official records. The following records are helpful at the outset:

• Acquisition documents
• Chain of delivery
• Lease or deposit agreement
• Records of previous entitlement
• Information on how possession was lost

Why Do the Particular Circumstances Matter?

For example, the presence of a machine in a workshop and the identity of its buyer are not determined by the same question. The machine may have been left under a deposit, lease or sale arrangement. A possessory presumption should not be used as definitive proof of ownership without examining that relationship.