The Protection of Possession of Property

People like to say that possession is 90% of the law. There is some truth to this, as ownership of any property is of no value if you cannot control and enjoy the use of that property. The law recognizes the value of possession, but also recognizes that in order to preserve the rule of law, it cannot let citizens take the law into their own hands and take possession of property on their own accord

There are types of property rights relating to possession. One is the right to possess a thing. The owner of a property or a lawful lessee would have the right to obtain possession of a thing. The other right is the right of possession. A person who is currently in possession of a thing is entitled to continue possessing that thing unless another party can prove it has the right to possess that thing. The possessory remedy (known as the “mandament van spolie”) is concerned with protecting that second right and has no bearing on the right to possess property. It is designed to apply those situations where a person not acting on the authority of any court or law takes possession of property from another person.

The mandament van spolie entitles any person to make an application to court, in which the court is asked to order that possession of a thing be returned to the applicant. This application is often brought by way of urgency. In order to succeed in this application, the applicant must show i) that the applicant was in undisturbed possession of the thing, and ii) that the applicant was unlawfully deprived of possession (“spoliated”). Spoliation occurs when a party loses physical factual control over property but did not legal possession. Legal possession only transfers from one person to another when the parties intend that possession should transfer between the parties. Once legal possession is obtained, continuous physical control of a thing is not necessary to retain legal possession. A person with factual possession but who has not acquired legal possession is merely a holder of that property. Thus spoliation does not occur only in situations where, for example property is snatched out of someone’s hand.
Any allegations made by the parties as to who has the right to possess that thing are absolutely irrelevant, and courts often correctly refuse to hear arguments as to who has the right to possess.

The mandament van spolie applies to both movable, immovable, and semi-corporeal property. The application of the mandament van spolie to residential immovable property will sometimes not be possible due to the Prevention of Illegal Evictions Act. The semi-corporeal property protected by the mandament are generally rights that are incidental to possession of corporeal property. Thus, someone in possession of immoveable property will be entitled to have access to electricity and water, and possession of that access cannot be unilaterally removed by the landlord.

There are 2 situations where the mandament van spolie does not protect possession of property. The first is where the person who original deprived the applicant of possession is no longer in possession of the property. A court will not order a 3rd party possessor of property to return possession unless that 3rd party was involved in the original spoliation. The second situation is where someone who was spoliated thereafter takes the law into his own hands and re-takes possession of the property. The original disposer will be entitled to use the mandament van spolie to retake possession. The court will only allow “counter-spoliation” where the retaking of possession is in fact a protection of the original legal possession.

Counter spoliation and 3rd party possession