What is a “reclamation claim” and what protection does it provide?
As one of the important subjective rights in modern society, the right to property is one of the most protected by the entire legal system. The high need to protect this right, and more specifically private property, is enshrined in the Constitution, where Article 17, paragraph 1 states the following: “The right to property and inheritance is guaranteed and protected by law.” Paragraph 3 of the same article further develops this concept, stating that “Private property is inviolable.”
The protection of property rights is also enshrined in the Penal Code. More specifically, Chapter V lists crimes against property, which include theft, robbery, embezzlement, fraud, extortion, concealment of property, destruction and damage to another’s property, and abuse of trust. Severe criminal penalties are provided for these crimes, which shows the negative assessment given to these socially dangerous acts by the legislator.
The legislation also provides for administrative protection of property in certain situations. Such protection is afforded to state and municipal property. First, attention should be paid to the provisions of Article 65 of the Municipal Property Act and Article 80 of the State Property Act, which regulate the seizure of state and municipal property, respectively, on the basis of an administrative act with the assistance of the police. Furthermore, state and municipal property, if public, is subject to a legal prohibition in Article 86 of the Property Act (PA) from being acquired by prescription.
Another essential tool for protecting property rights are the property claims provided for by the legislator in the provisions of the Property Act. These are declaratory claims for ownership (positive or negative), replevin claims, negative claims, and claims for determining boundaries. Petitor claims are a tool through which the holder of a right (of ownership) seeks to terminate the infringement of their right. These claims are not subject to a statute of limitations and may be brought at any time.
Claim for recovery. How and when?
The possibility of filing a replevin claim is also the main means of protecting property rights and, more specifically, the owner’s right to possess their property undisturbed. Depriving the owner of the opportunity to exercise actual control over their own property restricts their ownership rights.
The possibility of bringing this claim is regulated in Article 108 of the Property Act, where it is stated: “The owner may claim a13> require his/her property from any person who possesses or holds without having grounds for doing so.” Possession, as one of the powers of ownership, is extremely important, because the owner, in order to be able to use his property and to a41> dispose of it, it is first necessary to possess it. Therefore depriving the holder of the legal possibility to exercise actual power over the thing is a serious encroachment on his right of ownership.
1). Parties to the action for recovery of property
In theory, it is widely accepted that a replevin claim is a claim brought by the non-possessing owner against the possessing non-owner. These are precisely the procedural roles of the parties in such a claim.
Plaintiff in proceedings under replevin claim may be the owner of the property. Also thus, the claimant in a reclaiming claim may be and a co-owner of the property. In theory and practice, there is a dispute as to whether a co-owner has the right to bring a claim for recovery of the entire property when it is possessed by a third party.
The co-owner also has the right to bring a replevin action against another co-owner, but only if the defendant in such a proceeding has violated the plaintiff’s possession by establishing actual control over the property in excess of his rights.
The defendant in a claim may be a person who is not the owner of the property but who possesses it. As is clear from the previous paragraph, the defendant in a replevin claim may also be a co-owner of real estate. This co-owner must have established actual control over the property exceeding his rights and thereby infringed on the plaintiff’s possession. The defendant must have no grounds for possessing the property in order for a replevin claim to be upheld.
2). Subject of the infringement
In order to file a replevin claim, the owner must not have access to their property or such access must be restricted. If the outcome of the case is favorable to the plaintiff, the court will establish that the latter is the owner and will order the defendant to return the property.
4). Subject of proof in proceedings concerning a replevin claim.
The burden of proof in such a case lies entirely with the plaintiff. He must prove that he is the owner of the property that is the subject of the case. To prove this, they usually use a title deed or other documents. Witness testimony can also be used if the plaintiff can show the court that they became the owner through adverse possession.
The plaintiff must also prove that the defendant in the case is in possession of the property that is the subject of the legal dispute and that the plaintiff cannot possess his own property as a result of the defendant’s possession. The plaintiff in a replevin action is not required to prove that the defendant’s possession is unjustified, i.e., that the defendant has no legal grounds for possessing the property. If the defendant claims to have legal grounds for possession, it is incumbent upon the defendant to establish and prove this before the court. The latter may present any objections and any legal grounds on which he possesses the property.
5). Decision on the case
If, after hearing the evidence, the court finds that the claim for recovery is well-founded and should be upheld, it shall state two things in the operative part of its decision. First, it shall declare that the claimant is the owner of the property. It then orders that possession of the property be transferred to the claimant, as stipulated in point 2A of Interpretative Decision No. 4 of 14 March 2016 in Interpretative Case No. 4/2014 of the Supreme Court of Cassation, Civil Division.
If the defendant fails to voluntarily transfer the real estate that is the subject of the case after his conviction, enforcement shall be carried out in accordance with Article 522 of the Civil Procedure Code, and the bailiff shall put the claimant in possession. Where, in the course of the proceedings, the defendant transfers possession of the property to a third party, insofar as the latter will again be bound by the force of res judicata (arg. Article 226 of the Civil Procedure Code) and on the basis of Article 523 of the Civil Procedure Code, enforcement proceedings shall be brought against that third party, and the bailiff may grant possession of the property to the claimant against that third party.
___________________________________________________________________________
More interesting topics in the field of real estate law, can be found in the section “Property law”.
Sole proprietorship law firm company “Silvia Petkova” has experienced and competent lawyers in real estate law.
Legal consultations by telephone and on site at the law office are provided only by prior appointment only.
Contact:
Working hours: Monday to Friday from 10:00 to 18:00. Address: Sofia, 2 Tri Ushi St., 3rd floor. Tel. 0885 47 77 57. Email: office@petkovalegal.com
OR