Understanding Precarious Possession Rights
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ScribdTranslationsUnderstanding Precarious Possession Rights
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ScribdTranslationsREAL RIGHTS
1. José is the owner of a property, he hands over possession of it to his son and daughter-in-law.
who have just married without requiring any compensation, nor setting
return period. What kind of possession does José, his son, and daughter-in-law hold? If these
they replace the old marble floor with parquet, enlarge the kitchen, smooth and paint
Do the interior walls have the right for José to reimburse them for the improvements?
made? Propose a solution. Legally substantiate your answer.
It is a personal possession established in extrajudicial relationships (there is no
contract), established for reasons of goodwill - good faith, in this case it is about
familiarity. This possession is commonly known as precarious (to demand the
possession of the property at any time), based on the mere tolerance of the actual possessor
and implies, in terms of the possessory situation contemplated in Article 911 of the Civil Code, the
physical possession of an asset without title, it is very important to highlight that assets
merely tolerated, that is, what is done by its owner without a real intention to grant the
full possession, does not affect the position regarding the transferred assets (refers to,
fundamentally, for the purposes of possession.
The remodeling of the almost obsolete housing is clearly a completely expense.
necessary, since its purpose is to preserve one's own ability and safety of the
housing in question, since this type of expense is paid to any holder, it is
Of course, you can demand your refund, and even withhold the delivery of possession until the
moment when the payment becomes effective as mentioned in Art. 916 of
Civil Code.
It is also worth mentioning that the expense consists of changing the marble flooring.
by parquet, they smooth and paint the walls of the interiors, it can be considered as a
useful cat, insofar as its purpose is to improve the floor (in the described case it cannot
it can be deduced that it is a necessary and essential expense for the household). The son and
the daughter-in-law has the right to her reimbursement, but José can choose between
satisfy the actual expenses or pay him the increase in value that has been experienced the
house as a consequence of the improvement made - Art. 917 of the Civil Code. Such is the case
In my perspective, the qualification of useful expense should be given to the replacement of the
I travel on a marble floor over parquet, that's how the expense consists of expanding the kitchen.
taking advantage of the space, which can be classified as a luxury expense, so not
they are not admissible to any holder, not even to the good faith holder, where it falls on a simple
comfort.
2. The expiration of a lease contract. Does it constitute the tenant as a
temporary occupant? Why? Propose a solution. Provide a legal basis for it.
response.
According to our Civil Code - Article 911 (precarious possession) "possession
precarious is that which is carried out without any title or when the one that was held has expired
Hello, in the described case, a possessor can be precarious for two reasons:
1. Because it never had a title (invader - illegitimate possession)
2. Because having been had at some point, it ended (the tenant
whose contract was terminated for failing to pay the rent.
Similarly, in the case presented, if the contract becomes ineffective, we cease to be in front of a
tenant and we would be facing a precarious situation.
3. If a landlord sells the property that has been rented for one year, what happens to the new
Can the owner evict the tenant for being a precarious occupant? Why?
What? Propose a solution. Legally support your response.
REAL RIGHTS
For eviction to be enforced, it must have the following causes:
Eviction for non-payment
Eviction due to precarious occupation
Eviction derived from a contract with a future waiver clause
Eviction for expiration of contract
Eviction in accordance with the provisions of Legislative Decree 1177.
Thus, eviction due to precarious occupation has its regulations in the Fourth Full Court.
Civil Cassation (Cassation 2195-2011, Ucayali. On the other hand, according to our Civil Code
precarious possession is that which is exercised without a title of possession or when the one who had it
has passed away. For the action to prosper, it must rely on these three prerequisites.
1. That to be considered precarious, there must be an absolute absence of any
circumstance that justifies the use and enjoyment of the asset by the party served.
2. That the actor fully certifies ownership of the real estate property in question.
unemployment request.
3. That the absence of any contractual relationship between the plaintiff and
and placed.
4. The buyer who acquires the property of a real estate by a seller who
he manifests being the owner of it by virtue of a purchase agreement and the
immediate possession that it holds, but which appears in the public property records
registered in the name of a person different from the one transferring it. What type of possession?
What rights does the buyer have in this case? Propose a solution. Provide legal justification.
your answer.
In our Civil Code, Article 906, it mentions the 'illegitimate possession in good faith'.
good faith lasts as long as circumstances allow the possessor to believe
who legitimately possesses or, in any case, until he is summoned in court, if the claim
result is founded
Thus, when the holder believes in their legitimacy, due to ignorance or factual error of
right regarding the vice that invalidates its title.
In this case, we know that the property belongs to the person who is registered in the registry.
public, therefore the buyer has the illegitimate possession in good faith.
BIBLIOGRAPHICAL REFERENCES
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Cassation 2195-2011, Ucayali
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