The Concept of Possession

 

What is possession?

This concept refers to the actual control or dominion over an object.

In order for a person to acquire possession of movable property, they must not only establish physical control over the property but also express their intention to do so.

However, the disappearance of the will during the process does not cause the disappearance of possession.

Possession can be based on a right, such as ownership, but it may not be.

But regardless, it is a legally protected situation.

 

The Nature of Possession

Possession is only possible over physical entities that have the characteristics of property.

As this definition implies, possession cannot be established over intangible entities that do not have the characteristics of property; consequently, law does not protect such a situation.

 

Possession not based on a right

As mentioned earlier, we stated that possession can be based on a right.

Indeed, a person can establish de facto control over a movable property by virtue of being its owner. This does not grant that person ownership rights over the property; however, they will be in possession. In this case, the person's possession benefits from legal protection.

 

Acquisition of Possession

1. Essentially Winning

In the case of movable property, it is the act of establishing direct and physical control over the property without seeking the consent of the possessor. In such a situation, one person gains possession while the other loses it.

It is also possible to say that the person who acquires actual control over the property as a result of an invalid transfer is the possessor, and this is achieved through original acquisition. As a result, the possession of an item obtained from a person who lacks the capacity to discern or through an invalid contract is considered to have been acquired originally.

 

2. Winning the Round of 16

Transfer of possession of an item occurs when the possessor voluntarily transfers possession with the consent of the other party, effectively placing the item under their control. For example, the transfer of ownership and possession of a movable property, or more simply, any product purchased from a market, serves as an example.

 

3. Gaining Facility Acquisition

It is when the current possessor, that is, the person who has possession of the item, retains possession and establishes possession in the hands of another person. For example, renting out a game console is an example of this.

 

4. Acquisition through Inheritance

Heirs acquire direct possession of the deceased's movable property.

 

Types of Transfer of Possession

1. Short Hand Delivery (Transfer of Ownership): The current possessor of the property transfers possession to a new possessor by changing their status over the same property. For example, if the owner (primary possessor) of a property sells it to a tenant (secondary possessor), and the tenant now possesses it as the owner, this constitutes a short hand delivery.

2. Direct Possession by the New Possessor: The property or the means of control over the property (key, title deed, etc.) are delivered directly to the new possessor. In this case, the new possessor establishes direct control over the property.

-Delivery of Goods: The goods are physically handed over to the new possessor.

- Delivery of Vehicles: The vehicles used for inspecting the goods are delivered.

- Transferring the Property to the New Possessor's Actual Control: The new possessor can establish actual control over the property without requiring any additional action from the previous possessor.

3. Indirect Possession by the New Possessor: The property or instruments of control are delivered to the representative of the new possessor, or the previous possessor continues to hold the property in their possession due to a specific legal relationship.

-Acquiring Possession Through an Agent: The agent takes delivery of the property based on their power of attorney or with the permission of the principal.

-Delivery by Act: Due to a specific legal relationship (lease, deposit, etc.), the property remains with the previous possessor, but the new possessor implicitly gains control.

-Transfer of Possession: The indirect possessor transfers possession to a new possessor by agreement of the parties.

-Delivery of Instruments Representing Goods: The transfer of a negotiable instrument such as a receipt or warrant transfers the possession or right of lien of the goods.

Reasons for the Termination of Possession of Movable Property

1. Termination at the Possessor's Will (Termination of Will to Possess): Possession terminates if the possessor expresses the will to relinquish control over the movable property. For example, a person can relinquish possession by throwing away their belongings, giving them to someone else, or abandoning them.

2. Loss of Actual Control: Possession ends if the possessor loses actual control over the movable property. This can occur in cases such as theft, loss, or misappropriation of the property. Due to the nature of movable property, the loss of actual control is more likely to occur.

-Permanent Loss of Control: Possession is definitively terminated if it is impossible to regain control over the item. For example, if a ring falls into the sea and becomes impossible to find, possession ends.

-Temporary Loss of Control: If control over an item is temporarily lost (for example, by lending the item to someone else), possession does not terminate.

3. Loss of Possession by the Intermediary in Indirect Possession: The indirect possessor loses possession of the movable property if the intermediary holding the property loses possession. For example, if a lessee (indirect possessor) sells the property, the lessee also loses possession.

 

The Supreme Court's decision clearly demonstrates that possession is a protected legal status, and that this protection can be enjoyed without relying on a specific right.

20. Legal Department, Case No. 2015/7244 E., Decision No. 2015/8752 K.

"Case Law Text"

These cases involve provisions in Articles 981, 982, and 983 of the Turkish Civil Code (TMK), which are established to protect the possession of persons who have no right other than possession of the property. Article 973 of the TMK defines possession as "the person who has actual control over a thing is its possessor." Articles 982 and 983 of the TMK protect possession through litigation, regardless of whether it is based on any right. It should be noted that in a lawsuit for the protection of possession, the possessor does not bear the burden of proving that the possession is based on a right; instead, they simply assert their possession, benefiting from the ease provided by the simplified trial procedure applied in the Civil Courts of Peace.

When the possessor bases their possession on an objective or personal right, the case takes on the character of a claim for rights; in that case, the court's jurisdiction is determined according to the value of the subject matter of the lawsuit, unlike a case for the protection of mere possession