The Legal Protection of the Possession from Invasion or Disturbance

Legal Insight

Ιούλιος 2022

George Zaouris, Trainee lawyer

Summary: This article examines the possibilities provided by the law for direct and effective judicial protection of the possession of a right from infringement or disturbance.

1. Introduction

The basic foundation for understanding the present topic is what exactly the concept of "nomos" is. Possession, in a strict sense, is the physical power over a thing, which is exercised with the intellect of a master (Article 974 CC). The mentality of a master consists in the belief of the person who has it that he has a permanent, unlimited and exclusive power over the thing, similar or analogous to that which derives from the right of full ownership and which is conferred on the person entitled to it. The master's intellect is manifested by treating the thing in the same way in which the owner could treat it, without it being necessary that the intention of the owner be directed towards a legal acquisition of ownership, nor that the owner be convinced that he has ownership (Court of Appeal of Piraeus 138/2020).

That is, on the one hand, the material - physical element of the physical power of the thing (corpus) and the spiritual (animus), that of the master's intellect, must be present. In more detail, physical dominion is a real situation and is defined as the physical relationship of the person with the thing in such a way that the person who has possession - the possessor - can influence it. According to the decision of the Supreme Court  No. 211/2010 : 'Physical possession of the thing is the exercise of acts that are close to the nature and definition of the thing, so that in the perception of the transactions it is considered to be at the permanent disposal of the person who possesses it. It also exists when the grantor is not in constant physical contact with the thing, but has the supervision and the possibility of exercising physical authority at all times. In fact, the possession acquired 'continues to be maintained even without the constant active presence of the possessive conditions of the possession, that is to say, without the necessity for the possessor to be constantly in physical contact with the thing, nor to be constantly alert and to have the mind of the master constantly directed towards it' (CP 108/2011). The master's intellect, on the other hand, consists in the desire of the possessor of the thing to have it unlimitedly, permanently and exclusively for himself, similar or analogous to that resulting from the right of full ownership. Possession is thus contrasted with possession, since the latter refers to a qualitatively and temporally limited physical power, which lacks the intellect of a master. It is also stressed that possession is not a right but a 'state', which may be similar to and derive from, but is not identical with ownership, since the possessor is not necessarily the owner of the thing.

The law gives the right to the landlord to defend himself in case of expulsion or disturbance of his possession with the corresponding actions in Articles 987 and 989 of the Civil Code (CC). These actions must be brought within one year (Article 992 CC) of the act which disturbs the object. Otherwise, the claim arising from possession is time-barred (Article 261 CC), because it is generally accepted that injunctions for possession do not interrupt the limitation period. Once the one-year period has elapsed without effect, the only thing that remains is to bring an action to enforce the claim (Article 1094 CC). It should be noted that disturbance refers to the obstruction of the normal exercise of possession and does not extend to the removal of the object of possession of the property by the tenant, since the deprivation of possession of part of a property is also considered to be a deprivation of possession.

Since the procedure for the above-mentioned actions is lengthy and there is a risk of damage to or destruction of the contested object, the more rapid procedure of an injunction for possession is provided for. 

2. Procedure and competent court

Proceedings for interim measures of protection are heard in accordance with the general provisions laid down for all interim proceedings (Articles 682 et seq. of the Code of Civil Procedure - CCP -). This means that they are heard orally and that the judge is not required to have full legal certainty, but merely to have a presumption, because of the speed of the proceedings and the urgency of the case. Moreover, the final judgment will be given by the judge of the court in which the main action is brought. In any kind of possession (or possession) case, injunctions are ordered exclusively by the Magistrate's Court of the district in which the property is located (Article 29 CCP), and if it is a movable property, either in the Magistrate's Court of the defendant's domicile or in the place where the property is located, as the nearest to the place of enforcement of the judgment (Article 686 par. The Magistrates' Court 'may order any protective measure it deems appropriate, in particular to authorise or prohibit acts of possession or occupation or to award possession or occupation to one of the parties, either with or without the provision of security' (Article 734(2) of the CCP).

3. Conditions - Content of the application for an injunction

Necessary elements of the application for interim measures are, in any case, pursuant to article 688 of the CCP, the definition of the requested measure and the indication of the facts that establish, on the one hand, the insurable right, for which legal protection is sought, and on the other hand, the imminent danger or the urgent case (Athens Single-Member Court of First Instance 7803/2014):

• The existence of a right (at least already established) which gives rise to a claim for protection by means of an injunction. The individualisation of the object in dispute (Civil Procedure 345/2009, Judgment 191/2012).
• The mention of acts of physical authority by the claimant that establish his possession at the time of the challenge (CPR 254/2006). 
• The description of the acts of the challenge. It is required that a human and conscious act takes place without the will of the occupier, which is illegal, i.e. contrary to a prohibitive provision of the law and
• The urgency of the case for obtaining injunctive relief (Judgment 45/2007). Essentially, the law means the existence of an unusual need for extraordinary judicial protection of the party that is justified by the existence and existence of present facts of a specific risk of frustration of the claim or an urgent case of the present moment. An urgent case exists when there is a need for the temporary enjoyment of the insurable right by the alleged beneficiary, because in the course of time substantial damage of any kind is likely to occur, either to the material nature of the object or to the beneficiary (Athens Single-Member Court of First Instance 2967/07). Moreover, the concept of urgency is always present ("spontaneous" - Piraeus Magistrate's Court 1982/2013) if the infringement of the right and the need for its restoration are established ("[...] the urgent case, i.e. the need to temporarily activate the legal relationship in question, is spontaneous when the existence of the right to be secured and its infringement are presumed. In particular, when the right of possession is challenged (by expulsion or disturbance), the Court of Provisional Measures has the possibility to temporarily restore the applicant's damaged physical right to the object in dispute, in accordance with the express provision of the CCP 734 §2, precisely because the infringement of this power alone has created eo ipso the need for him to continue temporarily to exercise his right to the inter-filio, in other words, to temporarily activate his right" - 28/2007 Ergo's Magistrate Court). 

Although it is not emphasized, of major importance is the precise temporal delimitation of the offensive act to the right of possession, in order to ensure that the application for interim measures of possession does not suffer from vagueness and is not rejected on this ground. It is then necessary, by order of a competent bailiff, to serve a certified copy of the application for interim measures of protection on the opposing party in order to inform him of the time and place of the hearing. Thereafter, until the decision on the application for interim measures already lodged and served has become final, it is not possible to submit a new application with the same content. 

4. Adjudication of the application

The hearing is normally conducted in the presence of the parties, but even when the applicant or the opposing party, who was legally summoned in due time, is absent, the proceedings proceed in the same way, as the absence of the opposing party does not give rise to a presumption of confession (i.e. in his absence the applicant's claims are not considered to be confessed - Evros Single Judge Court of First Instance 193/87). Third parties may bring a main or additional intervention and, without having to comply with the provisions of the Code of Civil Procedure, the magistrate proceeds to collect evidence by means of all kinds of documents and by examining the parties and any witnesses, for whom no notification is required. The opposing party may raise all kinds of objections, except those which are contrary to the nature of the interim measures procedure, such as an objection in camera (Article 325 of the CC) because of its suspensive nature, which does not correspond to the interim measures procedure (Athens Single Judge's Court of First Instance 2858/2002 - p. e.g. an objection without delay could be considered to be the refusal of the unlawful party challenging the possession to return it to the legal beneficiary and applicant for interim measures until he has received the money owed to him by the latter).

5. Adoption of a decision - Εnforcement

The magistrate, in the decision he or she will issue, "is entitled to order any protective measure he or she deems appropriate, and in particular to authorise or prohibit acts of possession or occupation or to award possession or occupation to one of the parties, either with or without the provision of a security" (art. Notwithstanding the general prohibition of injunctions in Article 699 of the CCP, the judgment may be appealed against within ten (10) days of its service (Article 734(3) of the CCP). An appeal is the only remedy available in these proceedings, and is lodged by means of a statement of grounds of appeal filed at the Registry of the Magistrates' Court where the judgment was delivered. On the contrary, 'decisions of the Multimember Courts of First Instance in appeals against decisions of the Magistrates' Courts on injunctions for possession or possession are not subject to the right of appeal' (CC 555/1991). Likewise, the remedies of opposition in default of judgment and opposition in opposition are not available.

Moreover, the judgment of the Magistrates' Court is immediately enforceable and 'the time limit for an appeal and the lodging of an appeal do not suspend the enforcement of the judgment of the Magistrates' Court unless the suspension is ordered under Article 912 of the CCP' (Article 734(4) of the CCP). 

The enforcement of the judgment is effected by means of a copy or a simple extract of the judgment, after 24 hours have elapsed after service, within which the defendant, i.e. the party illegally challenging the right of the applicant for interim measures, may voluntarily comply. Disobedience, that is to say, failure to comply with the content of the decision of the injunction in possession, is punishable under Article 42 of the Introductory Act to the Civil Code on the basis of Article 169 of the Code of Civil Procedure, which provides for six months' imprisonment.