18 Feb Possession Violation: Disturbance and Dispossession under the Civil Code
Possession
The term “possession” in legal terms refers to the physical control (corpus) of a person over a thing, whether movable or immovable, when exercised with the intention of ownership (animus domini), meaning with the will to control it continuously, indefinitely, and exclusively, just as an owner would. However, possession does not necessarily require ownership rights, and often, a person may have possession without being the legal owner of the property. Recognizing the need to protect this factual situation, the legislator has provided, through the Civil Code (Articles 974-998), the means for safeguarding the possessor against violations of their possession.
Violation of Possession
Possession is violated either through disturbance or dispossession of the possessor, provided these occur unlawfully and without their consent, directly affecting their authority over the property. Dispossession is a more severe form of violation as it results in the complete loss of possession, while disturbance involves interferences that hinder the possessor’s use of the property without completely depriving them of it.
Disturbance of Possession
Disturbance of possession consists of third-party interventions that affect the exercise of possession without fully removing the possessor’s control over the property. According to Article 989 of the Civil Code, a possessor who is unlawfully disturbed has the right to demand cessation of the disturbance and its prevention in the future. A claim for damages under tort law provisions is also not excluded.
Actions that may constitute disturbance include:
- Unauthorized entry or passage through the property.
- Illegal use of shared or private spaces without consent.
- Placement of obstacles or barriers restricting access or use of the property.
- Activities causing significant nuisance, such as persistent noise, pollution, smoke, or vibrations that hinder the possessor’s use of the property.
Conditions for Filing a Possession Disturbance Lawsuit:
The plaintiff must prove they had possession of the property before the disturbance.
The disturbance must have occurred without their consent and in violation of the law.
The claim must be filed within one year of the disturbance, as stipulated by the Civil Code.
Clear and specific actions of the violator must be documented, demonstrating tangible and measurable interference with the possessor’s control over the property.
Legal Protection in Cases of Disturbance:
Possession Disturbance Lawsuit: The possessor may file a lawsuit within one year from the disturbance, seeking cessation of the interference, restoration of the prior state, prevention of future disturbances, and compensation for any damages incurred.
Injunctive Relief: In cases of urgent necessity, temporary judicial protection can be requested through injunctive measures to immediately restore possession and prevent further disturbances.
Dispossession from Possession
Dispossession involves the complete removal of possession of the property from the possessor through violent or unlawful acts by third parties. Article 987 of the Civil Code states that a possessor who has been unlawfully dispossessed has the right to reclaim possession from the person who wrongfully holds it. A claim for damages under tort law provisions is also permitted.
Actions that may constitute dispossession include:
- Unauthorized occupation of part or all of a property by a third party without the possessor’s consent.
- Illegal deprivation of property use through physical removal or denial of access.
- Refusal to return the property upon contract termination, despite the expiration of legal usage rights.
- Destruction or relocation of the property with the intent to deprive the possessor of their control over it.
Conditions for Filing a Possession Dispossession Lawsuit:
The plaintiff must prove they had possession of the property before the dispossession.
The dispossession must have occurred without the possessor’s consent and unlawfully.
The lawsuit must be filed within one year of the dispossession, as stipulated by the Civil Code.
Legal Remedies for Dispossession
Possession Dispossession Lawsuit: Filed to restore possession and recover the property, aiming to reinstate the prior status.
Injunctive Relief: Requested for the immediate return of the property through temporary judicial protection, preventing further violations and ensuring possession until a final court decision is issued.
Self-Help Protection of Possession
A possessor has the right to immediately and dynamically counteract any disturbance or imminent dispossession, provided their reaction is immediate and proportionate to the threat.
Protection of Movable Property: A possessor whose movable property has been unlawfully taken has the right to reclaim it by force, provided the perpetrator is caught in the act or pursued immediately.
Protection of Immovable Property: If a possessor of immovable property is unlawfully dispossessed, they have the right to reclaim possession immediately after the dispossession, using proportionate means.
The same rights apply to a possessor against the successors of the violator if the wrongful possession of the previous holder is established. However, self-help protection is not permitted when it requires disproportionate use of force or may lead to dangerous situations. In such cases, the possessor must seek judicial protection.
Temporary Protection of Possession through Injunctive Relief
To prevent the risk of damage or destruction of the property, the law provides for a fast-track injunctive procedure (Articles 682 et seq. of the Code of Civil Procedure), ensuring temporary possession protection.
For an injunctive relief request to be valid, it must include:
- A precise description of the disputed property, whether movable or immovable.
- Reference to actions by the applicant proving the exercise of possession.
- Description of the respondent’s actions that caused the dispossession or disturbance of possession.
The court’s decision is immediately enforceable, and the appeal period does not suspend its execution unless the court decides otherwise (Article 912 of the Code of Civil Procedure).
Conclusion
Possession violations, whether through disturbance or dispossession, constitute serious legal issues that can affect a person’s control and use of a property. Greek law provides effective legal means to protect possessors through lawsuits, injunctive relief, and criminal sanctions. Prompt and appropriate legal action is essential to safeguard and maintain possession rights.
If you are facing possession violations, you may contact our law firm, Karpouzis-Lianou & Associates, as we have the necessary legal expertise and specialization to provide effective protection and legal guidance. Reach out to us to discuss your case and ensure the protection of your rights.
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