Taking away possession through violence or by secret means. Claim for protection of possession under Art. 76 of the Law on Property.
This claim is known in theory as a claim for protection of dispossessed possession. The text of Article 76 of the Property Act (PA) reads as follows: “The owner or holder of movable or immovable property that has been taken away by force or by covert means may, within a period of six months, claim its return from the person who took it. This does not exclude the right of the person who took the property to bring a claim under the previous article.”
Subject of request for protection in the event of taking away of possession through violence or by secret means
Here, the subject matter of the claim for protection in the event of deprivation of possession is broader than in the case of a claim under Article 75 of the Property Act. With it, the subject of protection may be not only possession, but also the holding of the property. Possession and holding may in turn have as their subject both movable and immovable property. According to most authors in legal theory, the subject of protection also includes property rights. Unlike the provision of Article 75 of the same law, there is no requirement here that the subject of protection (possession or holding) must have continued for a certain period of time. If the possession/holding existed at the time of the infringement, it is protected, even if it was established immediately before the infringement itself.
What constitutes the violation, against which is possible defense in the case of deprivation of possession?
A violation is an act that deprives the owner, in whole or in part, of his actual power over the property. This provision does not mention the term “violation” at all; the term used is “deprivation.” Moreover, this “deprivation” must be carried out by force or in a covert manner, according to the text of the law.
If the term used is interpreted in its narrow sense, protection under this claim will only be granted when the owner or holder has been completely deprived of their actual power by force or by covert means. However, such an interpretation would place those who remove the infringers in a better position. When the infringement is qualified, i.e. committed by force or in a covert manner, the infringer should be prosecuted in all situations, as this is the logic of the legislator.
As regards the first qualifying feature of the offence, it is that possession or custody must be taken by force. According to the widely accepted understanding in practice, violence is any action taken against the express or implied will of the owner, even if that action is not accompanied by coercion or threat.
Violence should be directed against the owner/holder, not against the property. No violent action is committed when such actions are carried out by state authorities within the scope of their powers under the law (e.g., private enforcement agents) or in execution of lawful orders.
The second qualifying feature that the violation of possession must meet in order for the provision of Article 76 of the Property Act to apply is that it must have been committed in a concealed manner. This means that, due to the manner in which the violation was committed or the time at which it was committed, the violation cannot become known to the owner/possessor or would be difficult to become known.
In order to be classified as such, the circumstances and conditions under which the violation was committed are important. The fact that the violation must have been committed secretly applies only to the moment of its commission. Furthermore, the person for whom the violation must be secret is the owner and holder. It is irrelevant whether third parties are aware of the violation or not; what matters is whether the owner is aware of it.
The fact that the violation was committed in a concealed manner raises the question of when the six-month period for filing a claim begins. There are different opinions in the literature, with some authors arguing that the period begins from the moment of the violation, while others argue that it begins from the moment the owner becomes aware of the violation.
Parties in proceedings for protection in the event of deprivation of possession
An actively legitimized party—the claimant in proceedings for protection against deprivation of possession—may be the owner or holder of the property at the time of deprivation of possession.
The defendant in this claim is the person who took the property. This person must have used violence or taken the property in a covert manner. This circumstance also determines the personal nature of this claim. Here, the very nature of the violation always constitutes unlawful damage on the part of the violator, and for this reason, justice requires that the violator himself bear responsibility. The claim may be brought against both the person who committed the violation and the person who was used to commit the violation. It follows from the personal nature of the claim that it cannot be brought against a third party who has acquired possession from the infringer.
Subject of the request for protection in the event of deprivation of possession
With a claim for restoration of seized possession, the court may be requested to: a) terminate the actions constituting the violation; b) restore the actual power of the owner or holder; and c) remove the structures and other items, i.e., return the property to its condition prior to the violation.
If the infringer does not possess the item, he owes compensation for it. Here, the legislator provides for the possibility of this claim being combined with a claim under Article 45 of the Obligations and Contracts Act when the deprivation of possession by the infringer causes damage to the possessor.
Time limit for filing a claim for protection in the event of deprivation of possession
Here, too, the claim may be brought within a six-month period, which begins from the moment of the violation. This opinion is rather unanimously accepted by both theory and judicial practice. This is a somewhat strange concept, because the person whose violation has been concealed should be able to defend themselves once they become aware of the violation. As regards a violation committed with violence, common sense dictates that the period should start to run from the moment the violence ceases, because while the violence is ongoing, there is no way for the owner/holder to defend themselves.
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