WHAT IS POSSESSION?

Possession, a legal term, is encountered in PROPERTY LAW. It is regulated in the Turkish Civil Code. Literally, possession refers to someone who is using or has held a property for some time, whether or not they are the owner. Legally, possession is called actual control. The person who holds actual control is called the possessor. Possessors are natural or legal persons who have actual control over the property.

In the case of easements and encumbrances on immovable property, the actual exercise of the right constitutes possession.

Possession and ownership are different concepts. In fact, to be in possession, one does not need to be the owner of an item; it is sufficient to have actual control over it.

Ownership is the right to property, while possession is the right to use the property. The owner is the actual possessor, while the possessor is the person who has the right to use the property.

To acquire possession, two basic conditions must be met.

• Intention to possess
• De facto control

For a person to be considered in possession of something, they must have the intention and actual control to possess it. Therefore, individuals cannot be considered in possession of items acquired accidentally or unintentionally. As is known, possession is a legal status, not a right. Generally, it is not considered whether the possessor has a legitimate reason for possessing it. It is not based on a right but gives rise to legal consequences.

How is Possession Acquired?

There are various ways to acquire possession.

• Original Acquisition of Possession: This is when a person establishes actual control over an object of their own free will, without the consent of another. Examples of original acquisition of possession include ownerless objects, captured animals, such as those caught from fishing.
• Acquisition of Possession by Transfer: Possession is transferred when one person knowingly and willingly transfers actual control over an object to another. The acquisition of possession by the new owner is based on the consent of the person who previously possessed the object. For example, possession can be transferred through a sale. The acquisition of possession of an object by an heir due to the death of the previous owner is also an example of acquisition by transfer.
• Acquisition of Possession by Establishment: This is when the possessor, while retaining their own possession, recognizes the right of possession for another person.

POSSESSION IS DIVIDED INTO VARIOUS TYPES

Primary Possession – Secondary Possession

"Primary possessor" means the original possessor. Those who possess something by virtue of ownership are the primary possessors. Secondary possession, on the other hand, refers to possession acquired through the primary possessor. Primary and secondary possession are generally seen when more than one possession arises. The primary possessor is more qualified than the secondary possessor. The secondary possessor bases their possession on the primary possessor. As an example of primary and secondary possession, a person who rents their house to someone is the primary possessor, while the person who rents and uses the house is the secondary possessor.

Indirect Possessor – Direct Possessor

Direct possession refers to the possession of a person who directly exercises actual control over an object. Indirect possession refers to the possession of a person who exercises actual control over an object through another person, with the consent of the owner of the object.

Sole Possession – Joint Possession

Sole possession means that only one person possesses an item. Joint possession, on the other hand, means that more than one person possesses an item. Joint possession can take two forms. If each of the joint possessors can exercise their possession of the item independently of the others, it is called joint possession; if the joint possessors can only use the item together, meaning that possession cannot be exercised without the other possessors, it is called co-ownership, also known as joint possession.

Possessor based on right – Possessor not based on right

Possession based on a right means the possessor bases their possession on a specific right. Possession not based on a right means the possessor's possession is not based on any right. For example, when a thief steals an item, the thief becomes the possessor of that item. However, the thief's possession of the item is possession not based on a right.

Termination of Possession:  Possession may terminate when the actual control over the property ceases. However, the temporary non-use of actual control or the cessation of the possibility of use does not terminate possession. In other words, possession does not cease if the property is not used temporarily without the actual control ceasing.

Possession Cases

Claims for Restitution and Compensation in Cases of Usurpation of Possession; A person who usurps something from another's possession is obligated to return the item, even if they claim a superior right over it. This is because the law presupposes the continued actual control of the person in possession. The person whose possession has been usurped can demand the return of the property from the usurper through legal action. The defendant may refuse to return the item immediately prove that they possess a superior right that necessitates its return.

The lawsuit aims at the return of the item and compensation for the damage.

Lawsuit in Case of Infringement of Possession; When someone's possession is infringed, the infringed person may request that the infringement be terminated. Even if the infringer claims a right over the object, the infringed person may file a lawsuit against them. The lawsuit aims to end the infringement, prevent its cause, and compensate for the damage.

Even if the infringement on possession ends, if the infringement is repeated, the party may still request that the cause of the infringement be prevented.

 

Statute of Limitations in Possession Cases: The right to sue for usurpation and assault of possession expires two months after the possessor learns of the act and the perpetrator, and in any case, one year after the act occurred.