Libro Segundo · Título II Capítulo VII. De la posesión

A possessor is one who exercises over an asset all or some of the faculties inherent in ownership.

The temporary possessor by virtue of a right is an immediate possessor, with mediate possession corresponding to the person who conferred such right.

A person who exercises power over the thing by virtue of the situation of dependence in which he stands with respect to the owner thereof and retains it for the benefit of the latter in compliance with the instructions received from him is not a possessor.

Nor is a possessor one who holds the thing or enjoys the right by merely facultative acts or acts of simple tolerance, granted or permitted by the owner.

Only corporeal property and rights susceptible of appropriation may be the object of possession. Possession of rights is governed by the same provisions that govern that of corporeal things.

Possession gives to the holder the presumption of owner, until the contrary is proven. Only possession that is acquired and enjoyed in the capacity as owner of the thing possessed can produce ownership by usucaption.

Possession continues by operation of law in the person of the successor. The possessor may add to his own possession the possession of his predecessor or predecessors, provided that both possessions satisfy the legal requirements.

Current and prior possession give rise to a presumption of intermediate possession; but current possession does not give rise to a presumption of prior possession.

For possession to produce ownership, it must be based on just title, acquired in good faith, in a continuous, public and peaceful manner and for the time specified by law.

Just title for usucaption is that which, being translative of ownership, has some circumstance that makes it ineffective to effect the alienation by itself alone. 71 72

The good faith of the possessor consists in the belief that the person from whom he received the thing was the owner thereof and could transfer ownership thereof.

Good faith lasts while the circumstances allow the possessor to presume that he possesses legitimately, or until he is summoned in judicial proceedings.

The possessor in good faith who has acquired possession by title translative of ownership enjoys the following rights:

1°.To make his own the fruits collected, while his good faith is not interrupted;

2°.To be reimbursed for all necessary and useful expenses, having the right to retain the thing possessed until payment is made;

3°.To remove voluntary improvements, if no damage is caused to the improved property, or by repairing any damage caused in removing them;

4°.To be reimbursed for expenses incurred by him for the production of natural and civil fruits that he does not make his own because they are pending at the time possession is interrupted, having the right to legal interest on the amount of such expenses from the day on which he incurred them;

5°.Not to be dispossessed of the thing, if he has not previously been summoned, heard and defeated in trial;

6°.To be preferred over any other person who claims it with equal right, except in the case in which undivided possession must be given;

7°.To use possession as a means to acquire ownership by prescription; and

8°.To be considered owner of the movables that he possesses.

Natural fruits are deemed perceived from the time they are separated or lifted.

Civil fruits accrue day by day, and belong to the possessor in this proportion, once they are due to him, although he has not received them.

The possessor must justify the amount of the expenses to which he is entitled; and where he has received fruits to which he was not legally entitled, there shall be compensation of values.

Necessary expenses are those prescribed by law and those without which the thing is lost or deteriorates. Useful expenses, those which without being necessary increase the price or product of the thing; and voluntary, those which serve only for the ornament of the thing, or for the pleasure or comfort of the possessor.

A possessor in bad faith is one who enters into possession without any title to possess; and also one who knows the defects in his title that prevent him from possessing with right.

The possessor in bad faith is obligated to return the property possessed and its fruits, or the value thereof estimated at the time the possessor collected them or should have collected them; and to answer for the loss or deterioration of the thing, occurring through the possessor's fault or by fortuitous event or force majeure, unless the possessor proves that such loss or deterioration would have occurred even if the owner had held possession.

There is discontinuity in possession when the thing possessed is abandoned or deserted for more than one year, or earlier, when the intention not to retain it is expressly or tacitly manifested.

Violent possession is that acquired by force or by means of moral or material coercion against the possessor, against the person who represents him or against whoever holds the thing on behalf of such possessor.

Public possession is that which is enjoyed in a manner so that it may be known to all; and clandestine possession is that which is exercised by concealing it from those who have the right to oppose it.

In the case of immovable property, possession for ten years, with the other conditions indicated in Article 620, gives the possessor the right to request its supplementary titling in order for it to be recorded in the Register of Property.

The supplementary titling proceedings shall be subject to the procedure indicated by the respective law, and the decision approving the same is title for acquiring ownership.

Only Guatemalans by birth may obtain supplementary title to lands situated within fifteen kilometers along the borders and the littoral. If legal persons are involved, the individuals forming them must all be Guatemalans by birth.

Immovables located within State reserves may not be titled supplementarily. Nor may excesses of real properties be titled, which are acquired in accordance with the provisions of the administrative laws on the matter.

The registered possession of an immovable property, once the ten-year period from the date of the registration of the title in the Property Register has elapsed, converts into registration of ownership and may be asserted against any other registration of ownership relating to the same property.

However, the usucapient may bring an action to be declared owner even before the time indicated in the preceding paragraph, and the judgment so declaring the usucapient owner is title for the registration of the ownership and for cancellation of the entry in favor of the former owner.

The same thing cannot be possessed by several persons at the same time, so that each claims to possess the whole of it; but they may possess a thing in common, all of them having undivided possession.

Whoever has lost possession of a movable thing or animal, or from whom it has been taken, may reclaim it from whoever has it, without prejudice to the latter, if he had acquired the thing in good faith, being able to demand compensation from the person from whom he had obtained it.

If the current possessor of the stolen or lost thing has purchased it at a fair or at a public sale or from persons who deal in analogous things, the owner may not demand restitution without reimbursing the possessor the amount that the thing cost him.

Possession of the inheritance is acquired from the moment of the decedent's death, even if the heir is unaware of it.

Whoever validly repudiates an inheritance is deemed never to have possessed it.