Protection of possession

Protection of possession

Protection of possession is possible in the event that a certain person wilfully interferes with another person’s possession, whether by disturbing them in their possession or by depriving them of their possession, and at the same time it should be noted that the possessor who acquired that possession wilfully from another person by force, stealthily or by abuse of trust, has the right to protect the possession but they do not have the right to protect it from the person from whom they wilfully took it away, but they will be able to do that after the possession becomes peaceable.
Possession is the legally relevant factual authority that a person has over a certain thing. Unlike ownership, which is one of the real rights, possession is considered a fact, but socially and legally relevant fact which causes certain legal effects. Legal protection of possession serves to protect public law and order, i.e. to protect the general interest in maintaining the stability and continuity of social relations in which people live.
In order to keep such relations as stable as possible, the Act on Property and Other Real Rights (official gazette “Narodne novine” nos. 91/96, 73/00, 114/01, 79/06, 141/06, 146/08, 38/09, 153/09, 143/12, 152/14, 81/15, 94/17) stipulates that no matter the type of possession, nobody has the right to wilfully interfere with it, even if they consider that they have a stronger right to the possession. Therefore, further in this article, find out how protection of possession if carried out, either through self-help or through judicial protection of property.

Acquisition of possession

Protection of possession is possible in the event that a person wilfully interferes with another person’s possession, whether by disturbing them in their possession or depriving them of their possession, but it should be noted that the possessor who acquired that possession wilfully from another person by force, stealthily or by abuse of trust, have the right to protect the possession, but they do not have the right to protect it from the person from whom they wilfully took it away, but they will be able to do that when the possession is settled.

Quality of possession

In addition to the aforementioned methods of acquisition, in order for the possessor to acquire possession, the possession must be of a certain quality, i.e. legal, true and fair. Possession that has all three listed qualities is called qualified possession.

Possession is legal if it is based on a valid legal basis or legal foundation, for example a contract in which a thing is handed over to another person for use and the like. Possession is true if the acquirer acquired it in a permitted and proper manner, whether by original or derived acquisition. In the event that the possessor acquires possession against the will of the previous possessor by using physical or psychological force, fraud or abuse of trust, the possession is then not true and in that case the previous possessor has the right to have possession protected. The property is fair if the owner, when they acquired it, did not know nor, given the circumstances, had sufficient reason to suspect that they did not have the right to property.

For example, if a person acquires property on the basis of a validly concluded contract, there is no reason to doubt the validity of such a legal basis that ensures their right to property. However, honesty will cease when a person learns that the right to possession does not belong to them, that is, when they learn that the contract on the basis of which the thing was handed over to their possession is null and void, for example, the nullity of the lease agreement.

Also, you should know that the honesty and truthfulness of the possession of a legal person is judged according to the honesty and behaviour of the natural person who is authorized to undertake the acquisition or execution of their possession on behalf of that legal person, and the honesty and truthfulness of the possession of persons who have a legal representative is judged according to the honesty and the actions of their representatives.

Interference with the possession

On the one hand, possession is interfered with if someone takes possession from the possessor without his will, and thus the de facto authority of the previous possessor completely ceases, and a new de facto authority of the one who undertook the act of disturbance is established. For example, if during the term of a lease agreement, the owner of the apartment arbitrarily changes the lock, the possessor would no longer be able to enter the apartment and exercise authority over the property.

On the other hand, possession is interfered with if someone disturbs the possessor in their possession, thereby limiting their de facto authority. Whether in the case of dispossession or disturbance in possession, the possessor has the right to protect possession which can be exercised in two ways, through the court in a special procedure due to interference or through self-help.

At the same time, it should be known that wilful interference with possession is prohibited, regardless the type of possession, and precisely because of the above, no one has the right to disturb the possession, even if a person believes that they have a stronger claim to the possession at that time. If someone takes away the possession from the possessor without their will or disturbs their possession, it is an act of wilful interference with the possession.

It will not be a case of wilful interference with the possession if the act of dispossession or interference with possession is permitted on the basis of the law or a decision of a court or other body, which was made on the basis of and in accordance with the law. On the other hand, wilful interference is also when the act of dispossession or interfering with possession is done in some public, social or similar interest, and is not expressly permitted by law or on the basis of law.

Judicial protection of possession

Protection of possession is provided to the possessor in accordance with the Civil Procedure Act, in such a way that the possessor, due to wilful disturbance of the property, files a claim with the court for disturbance of the property. With the aforementioned lawsuit, the possessor will demand that the act of interfering with the plaintiff's property be established, that the defendant be ordered to establish the previous state of ownership and that such or similar interference with the possession be prohibited in the future.
In order to pass a decision on the interference of the possession, the court must consider and prove the facts about the last state of the possession and whether the possession was was a wilfully disturbed. Considerations of the issue of who is entitled to the possession, of legal basis and of the honesty of the possession are excluded. By adopting the claim and making a decision, the defendant shall be ordered to restore the previous state of ownership within a voluntary period. After the deadline, if the defendant failed to perform the aforementioned action, the plaintiff has the right to demand enforcement of the decision within thirty days.
The right to protection of possession will expire after thirty days from the day when the person whose possession is disturbed became aware of the act of disturbing the possession and the perpetrator, and no later than within one year from the day of the disturbance itself. Aforementioned right to the protection of possession is exercised in the procedure due to interference before the court or through self-help. After the expiry of thirty days i.e. one year, the person whose possession was disturbed no longer has the right to demand that a penalty for interference be imposed upon the person who committed the act of interference. It should also be known that the possession that was taken from the possessor did not cease or was interrupted if the possessor re-established their possession by exercising their right to protection of possession, either through the court or through self-help.

Establishing the existence of the act of interference with possession

When making a decision, the court must consider and prove the facts about the last state of the possession and whether the possession was wilfully interfered with, and based on the procedure conducted in this way, issues a decision on the interference with possession. At the same time, the court does not consider the issues of who has the right to possession, the legal basis and the honesty of the possessor or claims for compensation for damages, but as was stated previously, the court only determines the act of interference and orders its cessation.

In exceptional situations, the court may consider the objection of the defendant,  who claims that the plaintiff took their possession by force, stealthily or fraudulently but only if no more than thirty days have passed since the day when the defendant became aware that the plaintiff had taken away his possession until the day they returned their possession. During the proceedings, the court may, acting ex officio and without hearing the opposing party, order temporary measures in order to prevent illegal damage, violence or irreparable damage. When the court adopts the claim and issues a decision, it determines that the defendant has interfered with the possession, and will order the defendant to restore the former state of possession within the voluntary period for establishing such a state. If the aforementioned deadline expires, and the defendant has failed to undertake required action, the plaintiff has the right to demand enforcement of the subject decision within thirty days.

Protection of possession – self-help

Self-help is a natural reaction of a person whose right has been attacked to defend it or, if they have already lost it, to try to get it back. The possessor tries to realise the right to protection of possession by use of own strength or other private means, without the intervention of public authorities. Types of self-help are defensive i.e. defence of existing possession and offensive i.e. re-establishment of taken possession.
Those who have the right to protection of possession, may protect their possession during the period of time specified in the article for the protection of property and by force against the person who wilfully seizes their possession or disturbs their possession, and if this is necessary because danger is immediate and the help through the court would be obtained too late, but under the condition that they do not use greater force than is needed under the circumstances, and all in accordance with the principle of proportionality.
Allowed self-help may be used by the possessor's assistant in possession instead of the possessor, and in the event that the possessor realizes their right to protect the possession through self-help when the aforementioned prerequisites for permitted self-help are not met, they are responsible for the damage they caused.
Protection of the possession is possible if a person wilfully interferes with another person's possession, whether they disturb them in their possession or take that possession away from them, and it should be noted that the possessor who acquired that possession wilfully from another person by force, stealthily or by abuse of trust, has the right to protect the possession but they do not have the right to protect it from the person from whom they wilfully took it away, but they will be able to do that when the possession is settled.
Possession is the legally relevant factual authority that a person has over a certain thing. Unlike ownership, which is one of the real rights, possession is considered a fact, but socially and legally relevant fact which causes certain legal effects. Legal protection of possession serves to protect public law and order, i.e. to protect the general interest in maintaing the stability and continuity of social relations in which people live.

What requirements must be met in order for self-help to be allowed?

According to the Act on Property and Other Real Rights, self-help is allowed if three requirements are cumulatively met.  The first is that this type of defence must be necessary because judicial assistance will arrive tool late (circumstances do not allow the owner to seek judicial protection).
According to the second requirement, the danger must be imminent because the act of interference is in progress or has already been completed. And according to the third, in order to protect the possession, the owner must not use force of greater strength than is appropriate for the circumstances, because otherwise they would be liable for the damage caused. The downsides of self-help are that it is not effective enough because it fails against the stronger and threatens public order and peace.
It is important to note that the duration of the right to property protection through the court or self-help is limited, by a subjective period of thirty days from when the possessor becomes aware of the interference and who interfered with the possession, and by an objective period of one year from the interference, regardless of whether and when the owner found out about the interference. Likewise, it is not considered interference with possession if the act of dispossession or disturbance of possession is permitted by law, by a decision of a court or other body made on the basis of a law that allows encroachment into someone else's possession.

Protection of possession and inheritance

It is important to know that when a person dies, their possessions and rights pass to the heirs at the time of his death, as they were at that time. When the decedent's possessions passed to two or more co-heirs due to their death, all of them thereby became co-owners of each of those possessions, and thus they will execute that possession, unless on the basis of the decedent's will expressed in the will or a decision of the probate court, the execution is entrusted to a third person. The transfer of such a decedent's property to their heirs does not affect other possessions of the same thing, or rights.

Protection of possession – Termination of possession of a thing

Possession of a thing ends in cases when the thing perishes, when it is lost, and there is no possibility of its being found again, and in the case when the possessor abandons it of his own free will. The possessor's possession also ceases when the thing is acquired by a person who will not exercise any of their authority with regard to that thing or when another person takes the thing from them, if they have not achieved the protection of their possession.

The possession of the right will cease when the real estate on which the content of that right was executed falls into disrepair or the possessor renounces their possession of the right. On the other hand, the possession of the right will not cease by the mere non-execution of the content of the right of real easement while its possessor can execute it. In the event that if a person wishes to do so, then the possession ceases, however, when the possessor of the servient real estate stops doing what they were doing until then, tehy cease to suffer the content of the easement right to continue to be exercised on his real estate, i.e. they cease to miss what they missed until then, if the owner does not realize the protection of their possession.