Dutch Civil Code

Book 3 Property law in general

Title 3.5 Possession and keepership

Article 3:107 Possession and the keeping of assets
- 1. Possession is the legal status in which a person holds an asset for himself.
- 2. When a person possesses an asset without intervention of someone who is holding that asset for him, he has direct possession (proprietary possession).
- 3. When a person possesses an asset by means of someone else who is holding that asset for him, he has indirect possession.
- 4. Keepership is correspondingly direct or indirect.

Article 3:108 Holding an asset as possessor or as keeper
Whether someone holds an asset and whether he holds it for himself [possession] or for another person [keepership] has to be determined in accordance with common opinion, with due observance of the rules of this Section and, apart from that, on the basis of external facts.

Article 3:109 Presumption to hold an asset as possessor
Someone who is holding an asset, is presumed to be holding it for himself.

Article 3:110 Holding an obtained asset immediately for another person
If the legal relationship between two persons implies that, when one of them acquires something in a specific way, he will hold it for the other, then he will – in compliance with that relationship - hold what he has acquired, immediately for that other person.

Article 3:111 Continuation of keepership
Someone who by virtue of a legal relationship has started to hold an asset for another person [keepership], will continue to do so on that same legal basis until it appears that this starting point has changed, either as a result of an action of him for whom he holds that asset or as a result of a contradiction of this person’s right.

Article 3:112 Acquisition of possession
Possession is acquired through occupation (taking actual possession of an asset), through a transfer or through an acquisition under universal title.

Article 3:113 Occupation of possession
- 1. A person takes possession of an asset (occupation) by gaining the actual control of the underlying thing with the intention to hold it for himself as if it belongs to his property.
- 2. When another person possesses an asset, some isolated exertions of control are insufficient to take possession of that asset by means of occupation.

Article 3:114 Transfer of possession
The possessor transfers his possession by enabling the acquiring party to exercise the same actual control over the underlying thing as he could .

Article 3:115 Transfer of possession solely by means of a two-sided declaration
Possession can be transferred by means of a two-sided (bilateral) declaration, without any physical action:
a. when the alienator at the moment of the transfer is in possession of the underlying thing and he has agreed, by virtue of a stipulation (contractual provision) made at the delivery, that he will hold that thing as of then for the acquiring party;
b. when the acquiring party, prior to the transfer, already held the underlying thing for the alienator;
c. when a third person held the underlying thing prior to the transfer for the alienator and he will hold it afterwards for the acquiring party. In that situation possession does not pass prior to the moment on which either the third person has acknowledged the transfer or the alienator or acquiring party has notified the third person of the transfer.

Article 3:116 Possession and keepership obtained under universal succession
A person who has acquired under universal title someone else’s property, succeeds him in his position as possessor and keeper, with all qualities and defects attached to it.

Article 3:117 Loss of possession
- 1. Someone who possesses an asset loses his possession when he apparently has abandoned that asset or when another person has acquired possession of it.
- 2. Once a person has acquired possession of an asset, he continues to have possession of it as long as not one of the grounds for the loss of possession as mentioned in the previous paragraph has set in.

Article 3:118 Possession in good faith
- 1. A possessor is in good faith when, at the moment on which he acquired his possession, he regarded himself as proprietor of the involved asset and reasonably could have regarded himself as such.
- 2. Once a possessor is in good faith, he is deemed to stay in good faith [irrespective of the knowledge he gains afterwards].
- 3. Good faith is presumed to be present; the absence of good faith has to be proven.

Article 3:119 Possession includes the legal presumption of an entitlement
- 1. The possessor of an asset is presumed to be the proprietor of that asset.
- 2. With respect to registered property this presumption yields, when it is ascertained that the opposite party or his predecessor once were proprietors, whereas the possessor himself is unable to appeal to an acquisition under particular title afterwards for which a registration in the public registers is necessary.

Article 3:120 Possession in good faith (fruits, costs, damage and possessory lien)
- 1. The separated natural fruits and the due and payable civil fruits belong to the possessor who possesses the fruit bearing asset in good faith.
- 2. The proprietor of an asset, who claims its return from a possessor in good faith or who has received it back from such a possessor, must pay a compensation to him for the costs that the possessor has made with regard to that asset and for the damage for which the possessor is liable towards third persons under Title 6.3 of the Civil Code on account of his possession of the asset, insofar the possessor is not yet compensated for these costs or liabilities through the meanwhile obtained fruits of the asset or through other advantages enjoyed by him on the basis of his possession. The court may limit the chargeable compensation if a full compensation would lead to an unreasonable advantage for the possessor towards the proprietor.
- 3. As long as the chargeable compensation meant in the previous paragraph has not been paid, the possessor in good faith may withhold compliance with his obligation to hand over the asset to the proprietor.
- 4. The provisions of the present Article apply as well to a person who believes and reasonably could have believed that he has lawfully acquired possession of the involved asset, even though he knows that the operations and formalities, necessary for the legal delivery of the presumed property right, have not taken place.

Article 3:121 Possession not in good faith (fruits, costs and damage)
- 1. A possessor who is not in good faith is towards the proprietor not only obliged to return the asset itself, but also to hand over the separated natural fruits and the due and payable civil fruits, without prejudice to his liability on the basis of Title 6.3 of the Civil Code for damage suffered by the proprietor.
- 2. The possessor, meant in the previous paragraph, is towards the proprietor only entitled to claim a compensation for the costs made on behalf of the asset or the collection of its fruits, as far as he could claim such a compensation on the basis of the statutory provisions for an unjustified enrichment.
- 3. The provisions of the present Article also apply to a possessor in good faith as from the moment on which the proprietor has invoked his right against him.

Article 3:122 Proprietor wants to transfer of the asset instead of paying a compensation
If the proprietor, in order to get released from the compensatory obligations meant in the previous two Articles, wants to transfer the asset at his own costs to the possessor, then the possessor has to co-operate in this.

Article 3:123 Right of the possessor to remove changes or additives he introduced to the asset
A possessor who has introduced certain changes or additives to the thing he possessed, may – instead of claiming a compensation as meant in Articles 3:120 and 3:121 - remove these changes or additives, provided that he restores the thing in its original condition.

Article 3:124 Corresponding application of Articles 3:120 – 3:123 to keepership
When a person holds an asset for someone else [keepership] and a third person, who states he is the proprietor of that asset, claims it from him as his property, then the provisions of the previous four Articles, as far as it concerns the position of the possessor, apply accordingly to him as keeper of the asset, with due observance of the legal relationship in which he stands to the person for whom he keeps the asset.

Article 3:125 Legal actions of the possessor and keeper of an asset against third persons
- 1. A person who has acquired the possession of an asset, may on this ground, in case of a later occurring involuntary loss of possession or interference with possession, bring in the same legal claims against third persons in order to achieve the return of his possession or the removal of the interference than the ones available to a proprietor of that asset. However, these rights of action must be exercised by the possessor within one year after the loss or interference.
- 2. A legal claim as meant in the previous paragraph is rejected if the defendant has a better title to hold or to use the asset than the plaintiff, unless the defendant has obtained or used the asset by force or in a stealthy way.
- 3. The possessor and keeper are always entitled to file a legal claim against third persons on the basis of tort, even when the period of one year, mentioned in paragraph 1, has passed, provided that the legal requirements for such a legal claim are met.

Title 3.6 (Fiduciary) administration of Property*)

*) Title 3.6 of the New Dutch Civil Code contains the general provisions for all types of (protective) administration of property by an appointed legal administrator. The enactment of this Title, however, has been postponed and probably a new draft will have to be made before it may be introduced ever.