peaceful enjoyment to the occupant and is thus not bound to protect him/her against unlawful dispossession of the property.

Unlike a landlord, the nude owner (A) is not bound to warrant peaceful enjoyment to a usufructuary (B) who is dispossessed by a third party

(C). The usufructuary has a real right and can avail himself/herself against any person and in particular against a third party who claims to be owner or who has entered into possession of the property, whether or not the third party is in good faith. To defend his/her right against the dispossessor (C), the usufructuary has, in addition to the possessory actions mentioned above, a specific proprietary action, namely the action to vindicate a usufruct (lÕaction confessoire dÕusufruit). Possessory protection and droitural protection (protection of real rights) do not exclude each other (CCP, art. 1265). Hence res judicata in respect of possessory actions does not affect a substantive action based on a real right in the property. The fact that the usufructuary can act directly against the dispossessor does not, however, exempt the usufructuary from informing the nude owner of the disturbance or encroachment. If the nude owner is not informed, the usufructuary will be bound to compensate the nude owner for any damages suffered as if the usufructuary has committed the wrongful acts of encroachment or destructive act (Civil Code, art. 614).

Germany

German law regards a tenant in occupation as a possessor (Besitzer) and not as a mere detentor (Besitzdiener). Therefore B can bring a possessory action against C for unlawful deprivation of possession (Besitzentziehung) to have his/her possession restored within a year from being dispossessed (Civil Code, §§ 861 and 864). The remedy requires factual possession by the tenant coupled with unlawful self help (verbotene Eigenmacht) on the part of the dispossessor. Unlawful self help is defined as depriving someone of his/her possession against his/her will (Civil Code, § 858(1)). Force or stealth is not required. Where D has acquired possession of the property from C, B can only act directly against D if B can show that D had actual knowledge of C’s unlawful dispossession (Civil Code, § 858(2)).

Apart from the possessory remedy considered above, the holder of a personal servitude or a hereditary building right (Erbbaurecht) has a vindicatory remedy. The owner’s remedy to vindicate his/her property (Civil Code, § 985) is expressly extended to the holders of a usufruct (Nie§brauch)

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

(Civil Code, § 1065), a permanent right of habitation (Dauerwohnrecht) (Law on Apartment Ownership, § 34(2)) and a hereditary building right (Erbbaurecht) (Regulations on Hereditary Building Rights, § 11(1)). Although no express provision has been made in relation to the personal servitude of habitation (Wohnungsrecht), it is generally accepted that the holder also has the same remedy.46

It follows from the above that B only has to prove his/her real right and that C (or D) is in possession of the property to succeed with this remedy to have his/her possession restored.

Greece

Under Greek law, a person who holds property for another (κατοχή, katohi) in the capacity of a tenant, depositary or some other similar relationship (for example, a borrower under a loan for use) is afforded the same protection as a possessor against eviction or disturbance of his/ her control over the property by third parties (Civil Code, art. 997).47 Consequently, if B, as tenant, has been unlawfully dispossessed by C, B would be entitled to claim reinstatement of his/her possession from C (Civil Code, art. 987). If the requirements for a delictual action are fulfilled, a claim for damages may also follow.48 If D, at the time of acquiring the property, knew that C had unlawfully evicted B, B will also be entitled to enforce his/her claim for reinstatement of possession against D (Civil Code, art. 984, § 2).

The holders of the personal servitudes of usufruct and habitation are considered quasi-possessors of the property if they exercise their rights with the intention of acting as lawful beneficiaries (Civil Code, art. 975). Since quasi-possessors can also claim protection of their possession (Civil Code, art. 996), B as the holder of a usufruct or a right of habitation will also be able to claim reinstatement from C and, if appropriate, compensation for damage caused by C’s fault (Civil Code, art. 987 read with art. 984). Again, the position as regards D depends on D’s knowledge at the time he/she acquires the property (Civil Code, art. 984, § 2 read with art. 996).

In addition, the holders of a usufruct and a right of habitation will have a remedy against C and D by virtue of the fact that they obtained real rights in the property. Civil Code, art. 1173 expressly provides that the

46Mayer, von Staudingers, Kommentar, § 1093, no. 38.

47Georgiades, Property, vol. 1, pp. 245 ff. 48 Ibid. 230–1.

provisions governing the protection of ownership are applicable by way of analogy if the right of a usufructuary is infringed. B will therefore have the right to demand that the new possessor acknowledges his/her real right and return the property (Civil Code, art. 1173 read with art. 1094). The holder of a right of habitation would be entitled to use the same remedy (Civil Code, art. 1187 read with arts. 1173 and 1094).

It is not a requirement under Greek law that the dispossession must have been by force.49 All that is required is that the dispossession is unlawful and against the will of the holder (B) (Civil Code, art. 984, § 1). These are regarded as two separate requirements. The dispossession is considered unlawful if the dispossession occurs without a right, for instance, a right granted under a statute and if it occurred against the possessor’s will (Civil Code, art. 984 and 987). If the possessor consents to the dispossession or if the dispossessor entices the possessor to give up possession by fraud, dispossession is still considered to be effected in accordance with the will of the possessor and the dispossessed will not be entitled to the remedy under Civil Code, art. 987. It has to be noted that, although Civil Code, art. 987 mentions only unlawfulness as a requirement, it is accepted in case law50 and doctrine51 that the conduct required is an act against possession as described in Civil Code, art. 984, namely an unlawful act taking place against the possessor’s will. Nevertheless, the possessor who has been fraudulently enticed to give up his/her property is not denied protection by the law. Although the possessor is not entitled to the possessory remedy under, art. 984, he/ she is still entitled to demand rescission of the contract under which he/ she was fraudulently induced to give up possession (Civil Code, art. 147) and to compensation under the general tort provisions (Civil Code, art. 914 read with Civil Code, art. 149).

Hungary

B can act against both C and D, irrespective of the legal basis of his/her time-limited right (whether it be usufruct, right to use, lease, lease for profit or loan for use). In this regard it makes no difference whether the dispossession was effected by force or by fraud.

49Balis, Property, pp. 44, 53.

50Athens Court of Appeal 2747/1981 Harmenopoulos (Arm) 1982, 191.

51Balis, Property, p. 53; Georgiades, Property, vol. 1, p. 207.

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

There is a generally recognised right of protection of possession. If somebody is dispossessed or if the possession of the property is disturbed, then he/she is entitled to protection of possession. The possessor is entitled to that protection against all parties, except an individual from whom he/she acquired the possession of the property through unlawful self-help. The possessor is afforded protection of possession against the author of his/her title to possess (for example, a landlord or lender) as provided by his/her legal title (Civil Code, § 188).

Italy

In Italian law, possession is defined as power over a thing that is manifested by an activity corresponding to the exercise of ownership or another real right (Civil Code, art. 1140). Where the activity is not exercised in terms of a real right, the holder is classified as a mere detentor. Since a loan for use (comodato) and lease (locazione) are regarded as mere contracts,52 they do not create real rights and so the borrower and the tenant are considered to be merely detentores.

Under Civil Code, art. 1168 a person who has been violently or clandestinely deprived of possession can, within a year of the deprivation, sue the dispossessor for recovery of possession (azione di reintegrazione). This remedy is also available to a mere detentor who does not hold the object merely as a servant or friend of someone else. Thus, although they do not exercise control over the object in terms of a real right, both the tenant53 and the borrower54 can nevertheless institute an action for the restoration of possession. Since the holders of a usufruct, use or right of habitation exercise control in terms of a real right, they qualify as possessors and are entitled to recover possession in case of spoliation. The same is true for the holder of a hereditary building lease (proprietario superÞciario), who is commonly regarded as the owner of the building.

Civil Code, art. 1168 requires a violent taking. Italian case law, however, qualifies as violent every dispossession carried out against the will (even the implicit will) of the possessor.55 In light of this interpretation, practically every dispossession can be considered violent and thus every

52It is uncontroversial that the comodatario only has a personal right. The matter is more controversial for lease, but the prevailing opinion still denies that the lessee has a real right.

53See Cass. civ. 20/05/1963 n. 1306; Cass. civ. 05/03/1968 n. 710.

54See Cass. civ. 11/08/1986 n. 5008; Cass. civ. 30/06/1987 n. 5746.

55See Cass. civ. 23/02/1981 n. 1101; Cass. civ. 13/02/1999 n. 1204.