Comparative observations

190 c a s e s t u d i e s

in occupation,1 borrowers for use,2 and holders of personal servitudes3 and hereditary land leases.4 In these cases the remedy can even be used against the landlord, lender or owner of the property.

Italian law and Portuguese law recognise a person as a possessor if he has de facto control over an object that is manifested by an activity corresponding to the exercise of ownership or another real right over the property. Thus the holder of a hereditary building right (superÞciarius), who is regarded as the owner of the building, and the holder of a personal servitude, who exercises control in terms of a real right, qualify as possessors. In these jurisdictions, lessees and borrowers for use are, however, regarded as mere holders (detentores) and are therefore not entitled to a possessory remedy.

A few jurisdictions, such as Spain, Hungary and Poland, have discarded the traditional distinction between possessors and detentores and allow every person in physical control or peaceful possession of the land to institute an action (formerly an interdict) against the dispossessor for the recovery of possession. Thus the lessee, borrower for use, holder of a personal servitude or of a hereditary building right (superÞcies) are entitled to a possessory remedy. In English law, a claim for possession may be brought against a trespasser by any person who has a right to possession. This includes a tenant who has the immediate right to possess as opposed to the landlord whose right to possession is postponed until the end of the lease. A tenant can therefore bring an action for the recovery of possession unless his/her claim has been extinguished by a squatter having had adverse possession of the property for a period of twelve years. Danish law recognises some kind of possessory remedy (assisted by a bailiff) where a holder under a contract is dispossessed by C.

Although lessees in France are entitled to a possessory remedy, they are encouraged to proceed against the landlord who is contractually bound to place (and keep) the tenant in possession, except where the dispossession is caused by superior force. Legislation encourages the lessee to inform the lessor of the interference and allows the lessee a reduction in rent on account of the dispossession.

1E.g. under German, Austrian, French and South African law. Austrian law regards a lessee as the possessor of a right which offers the same protection as to a possessor of a corporeal object.

2E.g. under Greek law.

3E.g. in Greece and the Netherlands because their quasi-possession has been despoiled.

4E.g. under Dutch law.

In most jurisdictions,5 the dispossession by C need not be by force or fraud, but it must be unlawful.6 Summary restitution will be ordered without an investigation of the merits of the case. Other jurisdictions treat dispossessions by force or fraud differently. Under Greek law, dispossession by fraud does not give rise to a possessory remedy but can ground an action for rescission or a delictual action for damages. Portuguese law does not allow any defence against dispossession by force or fraud. The Italian Civil Code requires a violent taking, but case law has watered this down to a requirement of mere dispossession against the express or implied will of the holder. Similarly, South African law has watered down its earlier requirement of violent dispossession to unlawful deprivation of possession. Furthermore, Italian law has extended the possessory remedy to mere holders who are deprived violently or secretly of their possession. Under Belgian law, the strict requirement of possession for a year need not be complied with if a usufructuary, tenant or borrower for use is dispossessed by force or fraud.

In addition to possessory remedies, some systems allow a quasivindicatory remedy to all holders of property with a better right to possession than the person in actual possession.7 Under Austrian law, this remedy is available to possessors who are in good faith able to prove title to the property and that the possession did not result from interference with the defendant’s rights. Greek, Austrian and French law extend the remedies for the protection of ownership (actio publiciana, vindicatio usufructus and actio confessoria) to the holder of a personal servitude, while Belgian, Dutch, Italian and Polish law also analogously extend them to the holders of a hereditary building lease (superÞcies)8 and a hereditary land lease (emphyteusis) on account of their real rights in the property. This allows B to institute a vindicatory action against either C or D (whoever is in possession) for the return of the property. Portuguese law entitles the holders of registered real rights to petition the court for a declaratory or mandatory order for the return of the property, as well as an injunction to stop future interference against all dispossessors except the landowner. The French Civil Code requires the

5See e.g the German, Austrian, Spanish, Hungarian, Polish, Danish and South African reports.

6This means without consent or by virtue of a legal or statutory right.

7See e.g. the Danish report.

8The Italian law allows a proper vindication because the holder becomes the owner of the building.

192 c a s e s t u d i e s

holder of the real right to notify the nude owner of the dispossession. The owner will be able to claim damages resulting from failure to notify him/her.

Some jurisdictions allow recovery from the third person (D) who acquired the property from the dispossessor (C) if it can be shown that D had participated, to an extent, in the unlawful dispossession.9 Italian case law has interpreted this to mean that an action can be brought against the ‘moral author’ as opposed to the ‘material author’ of the dispossession, thus allowing the action to be brought against the person who has planned, instigated or ratified the dispossession. This is to some extent echoed by Polish law, which allows a possessory action against D only if the dispossession occurred on behalf of D. South African academic opinion will only allow a possessory action if D actively participated in the dispossession of B. This view is also supported by legal doctrine and case law in Austria, which require a personal interference by D in B’s possession but regrettably personal interference is interpreted very widely as knowledge on the part of D that C dispossessed the land unlawfully.

Spanish case law does not allow recovery from D, especially if acquired bona Þde, while some Spanish academics will allow a possessory action against any person in possession who has not yet acquired ownership of the dispossessed property. Polish law allows a possessory action against D only if the dispossession occurred on behalf of D.

Since a quasi-vindicatory remedy is not restricted to the dispossessor but to any person in possession of the despoiled property, the same rules as set out above in the case of C apply to D who acquired possession of the property.

Austria

A tenant who entered into possession of the land can sue anybody who interferes with his/her use of the land (Civil Code, § 339). A tenant is deemed to have a right to possess (Rechtsbesitzer) and to receive the same protection as a possessor of property (Sachbesitzer).10 This provision protects possession irrespective of whether the protected person is the owner or has a right to possess.11 The claimant only has to prove his/her

9 See the German, Greek, Italian and South African reports.

10Kletecka, in Koziol and Welser, Bu¬rgerliches Recht, vol. 1, pp. 258 ff.

11Iro, Sachenrecht, para. 15/55; Spielbu¨ chler, in Rummel, Kommentar, § 339, para. 1.

actual possession and interference with such possession.12 Civil Code, § 339 allows for declaratory actions, injunctions to refrain from further infringements and actions to claim for the restoration of possession. As Civil Code, § 339 only aims at protecting actual possession, the court considers neither ownership of the claimant nor his/her right to possession in these proceedings.13

The term ‘interference’ includes both minor disturbance and total dispossession or eviction.14 Use of force is not a requirement.15 An action against D requires that D can be classified as the person who personally interfered with B’s possession.16 Furthermore, according to some academic writers, D is deemed to be an interferer if he/she acquires the land from C in the knowledge that C acquired it by unlawful dispossession.17

It is not necessary that the person who interferes knows that he/she has no right to interfere. A claim according to Civil Code, art. 339 may therefore be allowed even if the interferer acts in good faith.18 A claim will not, however, be allowed against someone who has a right to interfere by virtue of statutory provisions or an official enactment19 or against someone who has good reason to believe that the possessor consented to the interference.20

A claim based on Civil Code, § 339 must be brought within thirty days. This period starts when B becomes aware of the interference and the person who interferes (CCP, s. 454, para. 1).

A tenant can also bring an actio publiciana under Civil Code, § 372.21 Whereas the remedies under Civil Code, § 339 flow from actual possession, those under Civil Code, § 372 are based on the right to possess. Protection under Civil Code, § 372 requires so-called ‘qualified possession’. This means that the possessor is in good faith and that he has a title to possess and ‘proper possession’. ‘Proper possession’ means that

12Iro, Sachenrecht, para. 2/57.

13Kletecka, in Koziol and Welser, Bu¬rgerliches Recht, vol. 1, p. 276; Iro, Sachenrecht, para. 2/64.

14Spielbu¨ chler, in Rummel, Kommentar, § 339, para. 2.

15See the examples of Spielbu¨ chler, ibid.

161 Ob 19/88; JBl (1989), p. 453; Spielbu¨ chler, in Rummel, Kommentar, § 339, paras. 7 ff.

17Iro, Sachenrecht, para. 2/61; 1 Ob 19/88; SZ 61/188; JBl (1989), p. 453.

18Spielbu¨ chler, in Rummel, Kommentar, § 339, para. 3; Iro, Sachenrecht, para. 2/60.

19 Spielbu¨ chler, in Rummel, Kommentar, § 339, para. 6. 20 Ibid. § 339, para. 5.

211 Ob 26/46; SZ 21/1; 1 Ob 607/49; SZ 22/207; 1 Ob 515/77; SZ 50/10 with further references (all refer to tenancy); 2 Ob 570/77; JBl (1979), p. 425 (usufructuary lease); 8 Ob 687/89; JBl (1991), p. 787 (usufructuary lease); Eccher, Kommentar, § 372, para. 3; Spielbu¨ chler, in Rummel, Kommentar, § 372, para. 5.

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his/her possession is not in itself the result of an interference with the rights of the defendant. The idea behind Civil Code, § 372 is that a person with qualified possession is normally also the owner of the property concerned. In other words, the qualified possessor is protected because ownership is presumed. From this it follows that Civil Code,

§372 does not provide protection against somebody with a stronger title.22 For example, it does not protect a tenant against the owner of the land.23 It further does not protect one tenant against another tenant

whose rights arise from a contract concluded with the landlord in good faith.24

The qualified possessor is protected against minor and major interference, against dispossession or eviction and, by analogy to Civil Code,

§364, para. 2, against emissions.25 With an action brought under Civil

Code, § 372, the tenant can claim restoration of possession and an order to refrain from further infringements.26

As in the case of a tenant, the possession of a holder of a servitude is protected by Civil Code, § 339. The principles discussed above apply to servitudes as well. Apart from possessory protection, the holder of a servitude also has proprietary remedies under Civil Code, § 523, which provide that the holder of a servitude can bring an action against both

the owner of the servient land and any third person who interferes with his/her enjoyment of the land27 or deny the existence of his/her servitude.28 He/she can claim for a declaratory order,29 an injunction to restrain from interference,30 an order to abolish obstacles31 or an

order to acquiesce in the holder using the land in accordance with the servitude.32

These actions can also be brought under Civil Code, § 372 under which the claimant only has to prove legal title and proper possession.

22See e.g. 8 Ob 687/89; JBl (1991), p. 787.

237 Ob 623/88; MietSlg 40.025; Spielbu¨ chler, in Rummel, Kommentar, § 339, paras. 3 and 5.

24Spielbu¨ chler, in Rummel, Kommentar, § 339, para. 5; 7 Ob 654/89; JBl (1990), p. 447 (full panel, versta¬rkter Senat); 8 Ob 687/89; JBl (1991), p. 787; 4 Ob 350/98v; wobl (1999), p. 215.

257 Ob 654/89; JBl (1990), p. 447 (full panel, versta¬rkter Senat).

261 Ob 515/77; SZ 50/10 with further references; Spielbu¨ chler, in Rummel, Kommentar, § 339, para. 5; 1 Ob 607/49; SZ 22/207; 1 Ob 26/46; SZ 21/1.

276 Ob 33/66; SZ 39/21; 6 Ob 541/81; MietSlg 33.050; 8 Ob 170/68; SZ 41/68; Hofmann, in Rummel, Kommentar, § 523, para. 6.

28Hofmann, in Rummel, Kommentar, § 523, para. 6.

296 Ob 33/66; SZ 39/21; OGH 11. 3. 1931, 3 Ob 93/31; SZ 13/54.

306 Ob 33/66; SZ 39/21; 6 Ob 541/81; MietSlg 33.050; 1 Ob 751/83; JBl (1984), p. 608.

318 Ob 170/68; SZ 41/68; 1 Ob 751/83; JBl (1984), p. 608; 1 Ob 622/95; NZ (1997), p. 213.

326 Ob 541/81; MietSlg 33.050.