What is the difference between de facto and de jure possession?

Propertypistol

The two most commonly used words in real estate are de facto and de jure possession. De facto refers to physical custody of property, whereas de jure refers to legal possession of an immovable item independent of physical possession.

One of the most important notions in real estate is possession. It is crucial since lakhs of property purchase and possession issues are now being litigated throughout the country. To prevent legal squabbles, it is good to grasp the terminology “possession” whether you intend to invest in real estate or currently own a property.

Possession is divided into two basic categories: de facto and de jure. To grasp this, we must first grasp the concept of possession.

What does the term “possession” signify in real estate?

Possession refers to having physical custody over something. Possession is also prima facie (on first appearance) evidence of ownership. This contributes to the notion that the physical holder of a tangible object is its owner, and that others should show their legal title in order to claim ownership over it.

Physical control of property need not constitute legal possession. Physical control must be underpinned by a legally binding instrument, such as a sale or lease deed.

What are the many categories of possessions?

The following are the two broad categories of possession:

De facto possession

This sort of possession relates to the physical custody of a tangible asset. A person who has physical control over a thing has de facto possession of it. De facto possession consists of two basic components: ‘corpus’ and ‘animus.’

Corpus of possession

Corpus signifies the possessor’s physical relationship to the property and connection with the entire world. As a result, the possessor must have some possession or control or be fully present to have a realistic belief that others will not tamper with it, i.e. others will not obstruct their ability to use and appreciate the property. The owner can secure the promise of non-interference in the following methods.

  • Physical power of the possessor: The individual in possession of property often employs fences, doors, and walls, among other things, to keep others from meddling with their ownership.
  • The possessor’s bodily appearance: In many circumstances, merely the possessor’s personal existence is adequate to retain ownership, even if they possess the physical ability to prevent others from meddling with their possession. Furthermore, possession is not forfeited simply by the possessor’s brief departure from the property. A person who goes for a stroll and leaves their house alone, for instance, does not lose custody of it

Animus

This theory, originally described as ‘Animus Possidendi,’ relates to the subjective aspect of possession. Although ‘corpus’ refers largely to physical control and power utilised to preserve access to a privately held property, ‘animus’ refers to the possessor’s purpose or desire to maintain control and operation of the object in their possession.

To put it simply, it is the possessor’s intentional purpose to prevent others from infringing with their right of possession. The animus is basically the mental component of possession. This desire to utilise the property (animus) solely does not have to be absolute.

De jure possession

Possession in law, often termed as ‘possessio civilis,’ refers to the legal possession of a property.

De jure possession happens when a person claims a property in the specified legal method in their region (for example, by a sale deed, rent agreement, or will) and inhabits it with no disagreement in order to own and use that property.

It is critical to emphasise that de jure possession is not the same as “ownership.” De jure possession can also refer to a tenancy, in which a renter legally dwells in a property after signing a lease agreement with the owner.

In most cases, an individual who has de facto possession of a property also has de jure possession of it. There are, though, limitations. A domestic assistant, for instance, may have mere physical authority over a property; yet, the factual and legal possessor is the property’s owner in the legal sense.

On the other end, there may be circumstances in which a person has no physical touch with the property but nevertheless has a legal title to it. “De jure possession is a sort of constructive possession,” says Sujatha Rangachari, Founder and Legal Practitioner of Rangachari Law Offices.

This implies that even if a person does not have physical control or contact with the property, they have legal right to deal with it as they see fit. A renter, for example, may be lawfully inhabiting an apartment, yet the landlord has constructive possession. The landlord may sell the property at any moment during the tenancy period, as long as it is specifically stated in the lease.”

To summarise, de facto and de jure refer to the basic distinction between physical and legal possession of property. Many scenarios, like as ownership and tenancy, allow for the coexistence of the two, but there are limitations.

Disclaimer: The views expressed above are for informational purposes only based on industry reports and related news stories. PropertyPistol does not guarantee the accuracy, completeness, or reliability of the information and shall not be held responsible for any action taken based on the published information.

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