Possession claim

An action of possession is regulated by Article 344 of the Civil Code.

• 1. Against the one who has wilfully violated possession, as well as against the one in whose favour the violation has occurred, the possessor has a claim for restoration of the previous state of affairs and for cessation of the violation. This claim shall not depend on the good faith of the possessor or on the lawfulness of the possession, unless a final decision of a court or other state authority appointed to hear cases of this kind has established that the possession resulting from the infringement is lawful.
• 2. The claim shall lapse if it is not asserted within one year of the infringement.

Active legitimacy

The right to issue a possessory claim is vested in the possessor of the item, be it the owner or the dependent possessor. The entitled party is therefore the one whose possession has been arbitrarily violated by depriving or interfering with the actual authority over the item.
The right holder is not the possessor, i.e. the person who wields the thing for someone else, in the interest of another person, without the intention of possessing it for himself.

Passive legitimacy

The action may be directed against:

1. to the one who has wilfully interfered with possession,
2. to the one in whose favour the infringement of possession has occurred.

Conditions of claim

The premises of the claim are:

1. infringement of possession,
2. arbitrary infringement of possession.

Content of the claim

The content of the claim is restoration and cessation of infringements.
If the infringement consists in depriving the right holder of his or her power over the item, he or she may demand restoration of the previous state of affairs by obliging the infringer to return the item. At the same time, he or she may also demand that further infringements cease.
A claim for an injunction against further infringements may instead consist of the imposition of appropriate prohibitions or orders on the infringer.

Preclusion period

The legislator has provided for a preclusion period reserved for the enforcement of the possessory claim of one year from the moment of infringement. After the expiry of this time limit, it is not possible to assert the claim effectively, as it expires. The time limit cannot be reinstated. The holder’s knowledge of the infringement is irrelevant to the running of the time limit. It is sufficient for the preclusion period to be observed if a claim is brought before the court.
Legal status: 18.09.2024