In the judgment of the Supreme Court of the Czech Republic in case no. 22 Cdo 204/2013, dated 25 March 2015, the Supreme Court addressed the issue of actual possession of a thing (object) and its manifestations.

1. Facts of the case

In the present case, the plaintiff sought a declaratory judgement determining the ownership of land. The plaintiff had acquired ownership of the land under a contract of sale with the defendants’ legal predecessor. However, this transfer was not recorded in the appropriate register of real estate property (land register). According to the law in force at the time of the conclusion of the contract, the right of ownership was transferred by the contract itself, not entry in the relevant register.

On the death of the defendants’ legal predecessor, the state notary confirmed the defendants’ ownership of the land in inheritance proceedings, and they were registered as the owners in the appropriate register of real estate property.

A dispute therefore arose over the ownership of the land, in which the plaintiff had acquisition title – a contract that preceded inheritance proceedings, but unlike the defendants, was not registered as the owner in the appropriate register.

In the proceedings for a declaratory judgement, the defendants argued they had acquired ownership of the land by acquisitive prescription (taking into account their predecessor’s legitimate possession). In view of this defence, the question of the defendants’ acquisitive prescription of ownership was crucial in determining the legitimacy of legal action.

In the opinion of the plaintiff, the defendants’ acquisitive prescription of the land was not possible, as residential buildings and garages had been subsequently built on the land, which were used by other parties, and therefore the defendants could not have “actively exercised possession” of the property in question, which is one of the conditions of lawful possession.

The court of first instance upheld the action, and the appellate court subsequently confirmed the judgment thereof. The defendants thus had no choice but to file for an appellate review in the matter.

2. Legal opinion of the Supreme Court of the Czech Republic

In the opinion of the Supreme Court of the Czech Republic, effective possession is held by whoever treats a thing as the owner (corpus possessionis). Corpus possessionis is thus held by a person who enters social relations in relation to a thing that are generally considered as a manifestation of power over that thing, i.e. “enjoyment (use) of that thing.”

In relation to real estate property, in this case land, the Supreme Court pointed out that physical control of the thing was one of the possible manifestations of enjoyment (use), as it is not possible to take physical possession of some things (e.g. real estate).

It therefore depends on an objective social assessment of whether someone has enjoyment of a thing, rather than just physical power over a thing – with regard to convention, experience and general views.

In the case of land, the possessor (holder) need not enter the land for years, and can let it lie unused, and yet remain the possessor, if no one else takes possession of the land. In fact, a thing is controlled by whoever exercises legal dominion over a thing according to general opinion and experience.

A possessor can also be someone who has possession through another person (i.e. detentor). Possession of a thing does not rule out the use of that thing by a person other than the possessor based on a right in rem or law of obligations (even without legal grounds), provided this person does not take possession him/herself, even if the owner has mere ownership of the thing.

In the present case, the Supreme Court of the Czech Republic set aside the judgment of the appellate court, because according to the appellate court for the review of legal action “the defendants’ acquisitive prescription of the right of ownership of the land was not the crucial issue in this case.”

In the renewed appeal, the appellate court will be bound by the legal opinion of the Supreme Court of the Czech Republic and will therefore have to examine whether there was acquisitive prescription on the part of the defendants according to the rules above.

3. Conclusion

In view of the above, it can be concluded that an owner can possess (hold) land, even if it does not enter or maintain the land for a longer period of time, if it is registered as the owner in the land register, and no one else takes possession.

Possession by an owner who does not enter the land, is not necessarily ruled out by the actual control of the land by another person, as possession may be exercised through another person or so-called detentor. At the same time, it must be noted that the use of the land on the basis of the law of obligations (e.g. a lease) does not always mean possession of the land.

In the final assessment, corpus possessionis will always be decisive in determining possession, i.e., who treats (uses) the thing as its owner. For example, if a lessee uses the land of the owner, but does not treat the thing as the owner (e.g. asks the owner for permission to fix fencing or considers itself the user, not the owner), it cannot be argued that the owner was not in possession of the land, even though it did not enter the land.

For more information, please contact our office’s partner, Mgr. Jiří Kučera, e-mail: jkucera@kuceralegal.cz ; tel.: +420604242241.