Claim for protection of possession and ownership under the Property Act
As a rule the holders of real rights (owners, holders of building rights, users, etc.) are those who exercise all a13> powers that fall within the scope of the relevant property right. From this rule, however there are exceptions. Sometimes there are persons who do not have a right to ownership or other property rights to exercise in reality their content on the basis of some legal grounds.
Example
Ivan owns a watch and uses it as he sees fit. At one point however Ivan loses his watch and it is found by Peter.
Peter does not comply with the legal requirement to hand over the found item to the police, but instead starts carrying it around and has it repaired. He can, if he chooses, give it to someone as a gift.
The example clearly shows that it is entirely possible in real life for there to be a discrepancy between the person who has the right of ownership (Ivan) and the person who actually exercises that right, even though he is not the owner (Peter). This shows that it is possible for there to be a real distinction between the legal and factual status of an item. This is possible both for movable and immovable property.
In the example given, Peter exercises actual control over the watch, while at the same time understanding that the watch is his property. Here, there is both the subjective element of possession (exercising actual control over the item) and the subjective element of intention, the intention for the item to be his, to become Peter’s property. This, in general terms, is possession.
If, in the above example, Peter gives Delian the watch he found, Delian will again exercise actual control over the watch. In this situation, Delian exercises actual control not for himself but for Peter, because he believes that Peter is the owner of the watch. This is possession. In this case, actual control is again exercised, but the subjective element is missing—the intention to appropriate the item, i.e., to treat it as one’s own.
The power of “possession” as part of the content of property rights enjoys independent protection by law – this is the claim for restoration of the right of possession (Art. 108), which differs from claims for protection of possession (Arts. 75 and 76).
Protection of ownership and possession. How and when?
The claim for protection of possession under the Property Act reveals several significant features.
Firstly, protection of possession is possible regardless of whether it has been established lawfully or not.
Example. Ivan knows that a certain villa is owned by Peter. However, Peter rarely visits the villa, so Ivan decides to move in. A year and a half later, Peter discovers that Ivan has moved into his villa and demands that he leave. Ivan, however, has the right to defend his established possession against Peter’s claim, even though he is in bad faith possession of the villa, knowing that Peter is its owner.
Any person who has the status of “possessor” may avail themselves of the possibility of protection of possession. As indicated in the example above, this is the person who holds an item as their own or through another person.
Two persons participate in the legal proceedings for the protection of possession.
The owner whose possession has been violated has the right to file such a claim. This is also permissible in cases of joint ownership. Such a scenario would arise if one co-owner possesses the property and another co-owner prevents him from exercising his rights as owner to the extent of his possession.
The person against whom the action for protection of possession may be brought is the one who prevents the possessor from exercising his rights to the full extent. This action may be brought not only against the infringer himself, but also against any person who possesses the property at the time the claim is brought.
Furthermore, the law stipulates a period that must have elapsed in order for possession to be subject to protection, as well as a period within which a claim for protection of possession that is subject to infringement must be filed.
Thus, in order to be subject to legal protection, possession must have continued uninterruptedly for more than six months. Possession is interrupted if it is taken away by another person. With regard to the continuity of possession and to facilitate proof, the law provides for a rebuttable presumption (legal assumption) that if a person has possessed a certain item during different periods of time, it is assumed that they also possessed it in between, unless proven otherwise.
As regards the time limit within which an action for protection of possession may be brought, it is six months from the date of the infringement. Where the infringement consists of multiple acts which, together or separately, constitute an infringement of possession, the period for bringing an action for protection of possession shall be deemed to commence from the last such act.
The court monitors compliance with the specified deadline ex officio, because it is preclusive. This means that if it is missed, any subsequent claim for protection of possession will not be considered by the court.
There are also peculiarities in determining which action can be considered a violation of possession.
Thus, a violation of possession is any action that completely or partially removes the actual power of the possessor over the property. The violation may be expressed both in direct factual actions and in threats.
Example. Ivan does not agree with his neighbor Peter building a house on his property, as it will block the light from reaching his garden. As a result of his disagreement, Ivan threatens Peter that if he goes ahead with his plan to build a house, he will set it on fire. In this way, Ivan forces Peter not to build.
Therefore, the infringement should be considered only as an act that restricts or excludes the actual power of the owner, regardless of intent.
What is achieved by filing a claim for protection of possession?
This claim may seek to terminate the infringement or restore the lost possession, as well as compensation for the damages suffered as a result of the infringement.
Example. Ivan builds a fence on property owned by Peter. As a result, Peter is unable to fully exercise his right of ownership. Therefore, Peter has the right to ask the court to order Ivan to tear down the fence at his own expense and to pay him compensation for the damages suffered as a result of the violation (including the fees paid by Peter for legal representation).
The meaning of filing a claim for protection of possession is revealed in yet another direction. If the convicted person fails to voluntarily comply with the court decision to cease the infringement, restore the situation to its pre-infringement state, and pay the damages suffered by the possessor, the decision is subject to enforcement by a bailiff.
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You can find more interesting topics related to rights, obligations, and legal options regarding movable and immovable property in the section “Property Law”.
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