Act No. 89/2012 Coll., the Civil Code, which is effective from 1 January 2014 (hereinafter “NCC”) brought many changes, one of which applies to changes in the institute of possession.
Possession is regulated in the NCC by Sections 987 to 1010 and ranks among absolute property rights, specifically rights in rem. The new regulation is far more extensive, and covered by a total of 22 sections (as opposed to Civil Code No. 40/1964, effective up to 31 December 2013 (hereinafter “CC”), in which possession was covered by three sections).
The purpose of this article is to generally outline new possibilities for the protection of possession and their practical application.
1. Possession
The conceptual features of possession under the NCC are: (i) the actual exercise of rights and (ii) the existence of the possessor’s (holder’s) intent to control this right exclusively for himself, therefore, as his own. The holder’s will must be manifested externally, and it is also important how such expression is perceived by third parties. Thus, for example, the possessor’s inner conviction of the right of possession is not sufficient.
2. What can be possessed (held)?
According to the NCC, it is newly permissible to possess rights, or the right of ownership, as opposed to the CC, which spoke of the possession of things.
Rights that can be possessed include, inter alia, (a) rights that can be transferred to another (e.g. the right of ownership, intellectual property rights), and (ii) rights that can be permanently or repeatedly exercised, e.g. the right of lease or easement.
However, a one-time right, which is fulfilled once, cannot be the subject of possession. Nor is it possible to possess a right whose nature precludes possession, e.g. the right of inheritance.
3. How to protect possession
3.1 Self-help
The easiest way to protect possession is so-called self-help, which was previously governed by Section 5 of the CC. This regulation is newly included in Section 1006 of the NCC, which allows anyone who has been deprived of possession, or restricted in their possession, to restore matters to their original state themselves. Simply put, if someone keeps my hammer, I can take it back myself. Such self-help taking back possession of a thing has its limits, and these limits are the limits of legitimate self-defence under Section 2905 of the NCC, i.e. that defence must not be evidently excessive.
Therefore, if, for example, my neighbour “borrows” my hammer without permission, I can take it back. However, if he does not want to give it back voluntarily, I cannot, for example, break into his house or physically attack my neighbour to get the hammer back.
3.2 Possessory action
If self-help is not possible, it will be necessary to turn to the court for the protection of one’s rights. Legal action in which the possessor (holder) seeks protection of his possession against those who have violated or deprived him of his right of possession, expelled or otherwise interfered in his possession, is called possessory action.
Possessory action may only seek to restore the original state; possessory action cannot be used to seek damages.
Possessory action must be filed in a subjective period of 6 weeks. This period begins on the day the possessor became aware of both (i) the facts establishing a right to file action, and (ii) the person who disrupted or threatens his possession pursuant to Section 1008 of the NCC.
However, it is possible to file possessory action in an objective period of 1 year from the date on which the possessor may exercise his right the first time, i.e. from disruptive conduct. This period also applies for the disruptor to file objections against legal action for the protection of possession on expulsion. Legal action or objections filed after this period shall not be taken into account and this is thus a preclusive deadline.
3.3 When to file possessory action?
This raises the question of why, for example, one should seek the return of a hammer through legal action for the protection of possession, rather than legal action for the release of the thing in question, i.e. revindication action. However, one practical reason exists, this being that in the case of legal action for the release of a thing, ownership of the thing must be proved. However, if, for example, I no longer have proof of purchase of the hammer, I will not be able to prove ownership, and I will not be successful in a dispute for the release of the thing, because I will be unable to bear the burden of proof. In contrast, I may be able to prove possession.
Another important factor is the period in which the court decides on submitted legal action. Decisions on possessory actions are very fast and the court decides on possessory actions within 15 days of their submission (Section 177 of the Code of Civil Procedure.). In contrast, in legal action for the release of a thing, the court is not limited by any deadline and can take a very long time to decide the case.
4. Conclusion
In view of the above, it can be concluded that possessory action certainly has its uses, especially in situations where ownership of a thing cannot be proved and it is not therefore appropriate to seek the release of a thing. Possessory action is also very fast.
It should, however, only be resorted to if it is not possible to remedy the situation through self-help.
The application of possessory action can therefore be envisaged, for example, in a situation where somebody regularly blocks your driveway by parking their car in front of this entrance. This type of action can also be considered by a tenant, whose landlord changes their locks and refuses to let them into their apartment, and therefore the ability to exercise their right of lease.
For more information, please contact our office’s partner, Mgr. Jiří Kučera, e-mail: jkucera@kuceralegal.cz ; tel.: +420604242241.