Types of Possession
Overview
The term Types of Possession refers in German civil law to the various forms of possession of an object. Possession is the factual control over an object supported by natural will (§ 854 Sec. 1 BGB). The precise distinction between types of possession has significant practical and legal importance, particularly in property law. The individual types of possession influence numerous legal consequences, for example with regard to claims for surrender, protection of possession, or acquisition of ownership by prescription.
Legal Foundations of Possession
The German Civil Code (BGB) contains key provisions on possession in §§ 854 ff. Possession is a legally protected factual relationship of control. Unlike ownership, possession is not necessarily associated with a legal claim to an object but merely represents the actual control over it.
Protection of Possession
Possession benefits from comprehensive protection against disturbances and interventions by third parties (§§ 858 ff. BGB). This applies regardless of whether the possession was acquired lawfully or unlawfully. The distinction between types of possession is crucial in determining the rights and obligations arising from the possessor relationship.
Overview of the Most Important Types of Possession
The doctrine of possession distinguishes between various types of possession, systematized according to different criteria:
Direct and Indirect Possession
Direct Possession (§ 854 BGB) exists when a person has immediate actual control over an object. Whoever physically holds or guards the object is the direct possessor.
Indirect Possession (§ 868 BGB) exists when control over an object is exercised by another person on behalf of the indirect possessor. A typical example is a possessory relationship, such as in a rental or loan arrangement: the tenant is the direct possessor, the landlord the indirect possessor.
Characteristics of Indirect Possession:
- Possessory Relationship: A legal relationship on the basis of which possession is to be exercised (e.g., lease, loan, custody)
- Right to Claim Surrender: The indirect possessor can demand the surrender of the object from the direct possessor (§ 868 BGB)
Possession Servant and Possession Agent
Der Possession Servant (§ 855 BGB) exercises actual control over an object for another as part of a social dependency relationship, for example, an employee for an employer. Legally, only the ‘master’ is considered the possessor, not the possession servant themselves.
In contrast, in the possession mediation relationship (§ 868 BGB), the possession agent (e.g., tenant) is precisely the possessor.
Own Possession and Third-Party Possession
Own Possessor under § 872 BGB is someone who possesses an item as if it belonged to them, intending to dispose of it like an owner.
Third-Party Possession exists when the possessor holds the object for another, for example, a tenant for a landlord. The will to possess on behalf of another is characteristic: the possessor explicitly acknowledges the ownership of another.
Sole Possession and Co-Possession
- Sole Possession: One person alone holds actual control over the object.
- Co-Possession (§ 866 BGB): Several persons exercise possession of an item jointly, for example, co-owners of an apartment. A distinction is made between fractional possession and collective possession.
Partial Possession
Partial Possession (§ 865 BGB) exists when a person, in exercising control, possesses only a spatially separated part of the object, such as the tenant of an apartment in a multi-family building.
Doctrine of Rights of Possession and Distinctions
The differentiation of types of possession has implications for subsequent questions such as acquisition in good faith, protection of possession, claims to surrender, liability, prescription, and limitation periods. The type of possession, for example, influences whether acquisition in good faith from a non-authorised person is possible (§ 932 BGB), or whether a person is protected under rights of defence (§ 859 BGB) or restitution rights.
Special Features of the Possession Mediation Relationship
The possession mediation relationship creates a tiered relationship of possession. The direct possessor possesses the item for the indirect possessor. The legal quality of the mediation relationship determines how far the rights of the indirect possessor extend.
Possession and Protection of Possession
Claims for protection of possession (§§ 858-861 BGB) apply to all types of possession, including tenants, lessees, or any other possessors, regardless of whether they have own or third-party possession.
Types of Possession in Legal Transactions
The distinction between types of possession is not merely academic; it has practical implications in numerous areas of law:
- Transfer of Possession and Ownership: In the acquisition of ownership by transfer (e.g., under § 929 Sentences 1 and 2 BGB), the transfer of possession in different forms is decisive, such as delivery (granting direct possession) or a possession mediation relationship (granting indirect possession).
- Securing Claims and Surrender: To assert claims for return (e.g., § 985 BGB), it must be specifically determined who is the possessor and what type of possession they have.
- Possession in Tenancy and Lease Law: The concept of possession plays a central role in distinguishing between legal relationships such as lease, tenancy, loan, or custody.
Types of Possession in an International Context
Private international law often maintains differing concepts of possession, particularly compared to German law. In many continental European legal systems, similar distinctions are found, while in Anglo-American law possession and ownership are more commonly equated.
Types of Possession – Summary
Differentiating between types of possession enables a precise assessment of both the actual and legal relationships of control over objects. It forms the basis for the application of property law norms, the determination of entitlements, and the assignment of protective rights. Making such distinctions is particularly important for the enforcement and defense of claims, determining liability, and for acquisition in good faith. Understanding the different types of possession is therefore a cornerstone of property law.
Frequently Asked Questions
What distinctions exist with regard to types of possession in German law?
In German law, various types of possession are distinguished, with the main distinction being between direct and indirect possession. Direct possession exists when a person exercises actual control over an object themselves (§ 854 Sec. 1 BGB). Indirect possession arises when actual control is exercised by a possession agent, who physically possesses the item, but holds it for another (the indirect possessor) on the basis of a possessory relationship (such as lease, loan, or custody) (§ 868 BGB). In addition, there is also own and third-party possession. An own possessor is someone who possesses an object as if it belonged to them; a third-party possessor regards the object as belonging to another (§ 872 BGB). Further distinctions are made between sole, co-, and partial possession, as well as between possession servants (§ 855 BGB) and possession agents.
How do direct and indirect possession differ from each other?
The direct possessor has actual control over an object directly, meaning it is within their physical sphere of control and they can access it at any time. Examples include the owner of a car parked in their garage, or the occupant of an apartment. The indirect possessor, by contrast, does not have immediate control over the item, but holds the possession position based solely on a legal relationship. The possession agent exercises direct possession for the indirect possessor. Indirect possession arises, for example, when a landlord remains the indirect possessor of a rented apartment while the tenant is the direct possessor. A so-called possessory relationship (for example, a lease or loan agreement) is a prerequisite for indirect possession.
What is the difference between own possession and third-party possession?
The distinction between own and third-party possession depends on the possessor’s intention. Own possession (§ 872 sentence 1 BGB) exists if the possessor holds an object with the intention of being possessor and owner (“As belonging to themselves”). In practice, this is usually the owner or someone who regards themselves as such. Third-party possession (§ 872 sentence 2 BGB) is established when someone exercises actual control but expressly acknowledges that possession belongs to another. A classic example is a tenant of an apartment, who lives there (direct possessor) but recognizes it as the property of the landlord and thus possesses on behalf of another.
What role does the possessory relationship play?
The possessory relationship is the key element in establishing indirect possession (§ 868 BGB). This is a legal relationship, typically based on contractual obligations such as rental, lease, loan, or custody agreements. This relationship creates the duty of the direct possessor (possession agent) to possess the object for the indirect possessor and to surrender it upon request. If no such possessory relationship exists or it ends, indirect possession regularly ceases as well. It is also a requirement that a real obligation to surrender exists and can be enforced.
What are possession servants and possession agents and how are they distinguished?
A possession servant within the meaning of § 855 BGB exercises factual control over an object for another in that person’s household or business based on a social or economic relationship of dependence—for instance, an employee for their employer. The employer remains the possessor. The possession agent, on the other hand, as per § 868 BGB, is someone who possesses for another by virtue of a possessory relationship (e.g., lease), but with their own legal capacity, and can regularly be involved as possessor in claims. A possession servant is not outwardly recognized as possessor, whereas the possession agent is regarded as possessor in external relations.
Can several people be possessors of the same object at the same time?
Yes, under German property law, so-called co-possession or partial possession (§ 866 BGB) is possible. In co-possession, several people jointly exercise actual control over an object, such as spouses sharing a home. Each co-possessor has the right to joint use. In partial possession, several people exercise actual control over different parts of the same object, as is the case with different locked rooms in one building. The exact form and nature of possession always depend on the actual areas of control and the intention of the parties involved.
In what cases does possession end and what legal consequences does this have?
Possession ends when actual control is fully given up, for example through transfer to a new possessor (conveyance of ownership) or by mere loss of possession (loss, theft, disposal). This is legally relevant especially regarding possessory claims such as the right to demand return (§ 985 BGB) or protection of possession (§§ 858 ff. BGB). Loss of possession can result in certain rights and claims lapsing, e.g., loss of indirect possession when the possessory relationship ends, or that protection provisions against third parties (particularly possessory actions) can no longer be invoked. Good faith in acquiring items (§ 932 BGB) often also depends on who is currently the possessor.
