Posession

POSESSION

In accordance with the provisions of the Act on Ownership and Other Real Rights (official gazette of the Republic of Croatia ˝Narodne novine˝, No. 91/96, 73/00, 114/01, 79/06, 141/06, 146/08, 38/09, 153/09, 143/12, 152/14, 81/15,94/17) possession is acquired when the acquirer establishes his factual authority regarding things, e.g. entering into possession of real property, regardless of whether their factual authority is established by a unilateral act, which is known as the original acquisition of possession, or the factual authority was transferred to them, which is known as a derivative form of acquiring possession.
The possession was acquired originally in the case when the acquirer physically takes some thing that until then was not in anyone's possession in his immediate possession, for example if the hunter caught an animal in a trap and took it for himself in his own hands.

However, regardless of the above, it should be noted that it is not allowed to establish factual authority on things by depriving the former possessor of such authority, save for the case of derivative acquisition in which the new possessor acquires possession according to a statement of will of the former possessor. Also, the acquirer acquires possession of things when the former possessor, e.g. pursuant to an agreement, hands over the thing in question to them by statement of their will, and when the thing is truly physically handed over to the acquirer.

Entering into possession of real property – What is possession?

In accordance with the provisions of the Act on Ownership and Other Real Rights, possession is a legally relevant factual authority which a person holds in relation to a particular thing. Unlike ownership rights, which are considered real rights, possession is considered a fact, i.e. a socially and legally relevant fact which causes certain legal effects. The protection of possessions primarily serves to protect public order and peace, i.e. to protect the general interest to maintain the stability and continuity of the social relations in which people live.

What is real property?

A property consists of a land parcel, including everything permanently affixed to land on or below the earth's surface. In the event that several land parcels are registered in the land register in the same land registry folio, they are legally united into one land registry unit, and as such constitute a single piece of real property. Grass,trees, fruits, and all the usable things growing from the earth on its surface are parts of the real property until they are separated from the ground.
Anything that is erected on, above or below the surface, and the purpose of which is to remain there permanently, or anything that is built into the real property, added to it or built onto it, or affixed to the real property in any other way, is part of such real property until it is separated from it. However, those buildings and other things affixed to the land for only transitory purposes are not considered a part of the real property.

Also, it is important to know that parts of the land are not those buildings and other structures which are permanently affixed to that land if they are legally separated from it by a real right which authorises its holder to have such a building or other building in their ownership on that alien land, and the same applies accordingly to those buildings and other structures which are legally separated from the land or from the common domain by a legally established concession established by law, which authorised the holder to have such a building or other structure in their ownership on that land.

Entering into possession of the real property – Legal foundation of the property

In addition to the above methods of acquiring possession, which are listed in the introduction of this expert article, in order for the possessor to acquire possession, the possession must have the required legal foundation, i.e. it must be lawful, truthful and fair. A possession with all three of the listed qualities is called qualified possession.
Lawful possession must have a valid legal basis, i.e. a valid legal foundation, for example, entering into possession of real property pursuant to an agreement. The possession is truthful if the acquirer has acquired it in a manner permitted and considered proper, either by original or by derivative acquisition.

In the event that the possessor acquires possession contrary to the will of the former possessor using physical or psychological force, fraud or abuse of trust, the possession is then not truthful and the former possessor may exercise his right to protect their property. Possession is fair if at the time of acquisition the possessor did not know and in view of the circumstances did not have any reason to suspect that he did not have the right to such possession.

In the event that a person acquires possession pursuant to a duly concluded agreement, there shall be no reason to doubt the validity of such legal foundation which entitles them to possession. However, honesty ceases at the moment when a person finds out that the right of possession does not belong to them, i.e. when they learn that the agreement pursuant to which the thing was handed over to them is null and void, e.g. when the nullity of the lease agreement for business premises is established.
Also, it should be pointed out that the honesty and truthfulness of the possession of a legal person is judged according to the honesty and conduct of the natural person authorised to undertake acts of acquiring or exercising their right of possession in their name, and the honesty and truthfulness of the possession of persons who have a legal representative is judged by the honesty and conduct of their representative.

The difference between ownership and possession of real property

Ownership and possession of real property are very different since ownership is a type of real right over a particular thing which authorises its holder to do anything they see fit with the thing in question and the benefits it entails, and to exclude anyone else from such rights, should this not be contrary to other people's rights or restrictions se by law, whereas possession is legally relevant factual authority which a person holds in respect of a particular thing.
Unlike ownership which considered a real right, possession, as stated in the introduction to this expert article, is a fact, i.e a socially and legally relevant fact which causes certain legal effects. It should also be noted that if, for example, pursuant to a lease agreement, a person acquires a legal basis for entering into possession of real property, it does not mean that the person in question has become the owner of the real property in question.

Court protection of possession

In accordance with the provisions of the Civil Procedure Act, the possessor is entitled to motion a court action for trespassing. The said action shall be filed within a subjective period of 30 days from the date on which the person became aware of the trespassing and the person committing it, and at the latest within an objective period of 1 year from when the trespassing occurred.

With an action for trespassing, the plaintiff primarily requires the court to establish the act of trespassing on their possession, to order the respondent to restore the previous condition, and to prohibit all such acts of trespassing in the future. The court provides protection of possession in a special, urgent procedure according to the last state of possession upon the occurrence of the trespassing in question, regardless of the right of possession, the legal foundation of possession, the honesty of possession and with no regard to whether the trespassing might be of any social, public or similar interest.

Termination of possession of things and rights

Possession of things is deemed terminated when the thing is destroyed, lost, and there is no prospect that it might be found, and when the possessor abandoned the thing of his own free will, e.g. after the person who has entered into possession of the property leaves that property upon expiry of the lease agreement. Possession by a former possessor is deemed terminated when possession is acquired by a person who shall not enforce the former possessor's authority over the thing or when the thing concerned was taken away by another person, and the former possessor did not exercise their right to protection.
Possession of a right is deemed terminated when the real property on which the content of the right was exercised is destroyed or if the possessor waived their possession of such right.  On the other hand, the possession of the right is not deemed terminated if the content of the right of actual easement is not exercised as long as its possessor is able exercise it. In the event that a person expressly wishes to do so, then the right of possession shall be deemed terminated, but when the possessor of the real property under easement ceases to do what they have done before, they cease to suffer the exercise of content of the easement rights on their real property, i.e. they ceases to omit to do what they have omitted to do up to that point, but only if the possessor of the right does not enact their right to protection of their possession.