Compensation for non-contractual use of property
The owner of the property is entitled to decide who can use his property. The right to use the property may arise from a right of ownership or another right in rem or a right of obligation, such as a lease or tenancy. In the first instance, the person entitled to use the property is the owner. With the owner’s consent, other persons may also use the real estate. The persons using the real estate should have some legal title to the real estate, resulting from a contract concluded with the owner. If the person actually using the real estate has not concluded an appropriate agreement with the owner, he or she holds the real estate without a legal title. If he or she uses the property as if he or she were the owner, he or she shall be deemed to be in sole possession. A person who has possession of the immovable property and uses it as if he were a tenant, leaseholder, usufructuary, lienholder or any other right to the immovable property with which he has dominion over the thing shall be considered a dependent holder. The legal situation of a dependent holder shall, in the absence of any regulation to the contrary, be governed by the provisions applicable to a possessory holder.
The use of a property without a legal title is sometimes called non-contractual use of the property.
What are the obligations of the owner and the dependent holder in the event of non-contractual use of the property?
These obligations arise directly from the provisions of the Act and their extent depends on the bad or good faith of the holder, i.e. whether he knew or, by exercising due diligence, could have known that he did not have title to the property. The law introduces a presumption of good faith in Article 7 of the Civil Code. According to this provision, if a law makes legal effects dependent on good or bad faith, the existence of good faith is presumed. The presumption may, however, be rebutted by presenting evidence showing a circumstance contrary to the presumed one. The burden of proof rests with the entity claiming that the holder of the freehold or the dependent was in bad faith. Against the background of disputes as to the non-contractual use of a thing, the burden of proof is therefore on the owner.
Bona fide possessor of property
The obligations of a bad faith holder vis-à-vis the owner shall be the same as those of a good faith holder from the moment the latter becomes aware that an action for delivery of the thing has been brought against him. However, the holder in bad faith shall, in addition, be obliged to reimburse the value of the benefits which, due to bad economy, he has not obtained and shall be liable for the deterioration and loss of the thing, unless the thing would have deteriorated or been lost also if it had been in the possession of the holder (Article 225 of the Civil Code).
Legal status as at 28.08.2024
Bad faith possessor of property
The obligations of a bad faith holder vis-à-vis the owner shall be the same as those of a good faith holder from the moment the latter becomes aware that an action for delivery of the thing has been brought against him. However, the holder in bad faith shall, in addition, be obliged to reimburse the value of the benefits which, due to bad economy, he has not obtained and shall be liable for the deterioration and loss of the thing, unless the thing would have deteriorated or been lost also if it had been in the possession of the holder (Article 225 of the Civil Code).
Legal status as at 28.08.2024
