The Netherlands

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disturber of his/her possession as the person entitled to the property. However, Civil Code, art. 3:125 only concerns possessory actions. As Dutch law distinguishes between possession and detention, the detentor cannot use a possessory action. This is remedied by law by giving detentors an action in tort for damages, in addition to a claim for restoration to their former condition (Civil Code, art. 3:125 III).

Civil Code, art. 3:125 must be distinguished from revindication, which is given on the basis of ownership and not on the basis of possession. What is often overlooked is the fact that holders of limited real rights can also use the rei vindicatio to protect their interests and to claim back the property from dispossessors.57 This seems to follow from Civil Code, art. 3:218 (usufructuary)58 and, art. 5:95 (holder of a hereditary land lease),59 which simply state that, apart from the owner, the holder of the limited real right may also start proceedings against any person who violates his/her rights.

The time-limited holder of a real right thus has an action in tort as well as a quasi vindicatory action against the person who dispossessed him/her. In Dutch law it does not matter whether the dispossession was effected by force or by stealth.

Poland

If B has a usufruct, personal servitude, lifetime habitation or perpetual usufruct on the land, then, according to Civil Code, arts. 237 and 251 respectively, provisions on protecting ownership are to be applied accordingly. Therefore B may use both the rei vindicatio and the actio negatoria to request that his/her possession of the property be restored or to demand that any other activity which violates his/her right be stopped (Civil Code, art. 222). The rei vindicatio may be instituted against anyone who detains the property and thus also against D, unless the latter has a right effective against B (for example, where B, who is entitled through usufruct, leased the property to D). The actio negatoria may be directed against anyone who violates a given right in a way other than by detaining the property.

Note that according to Civil Code, art. 690 the tenant of premises (whether business or residential) may protect his/her right by making use of the provisions applicable to the protection of ownership.

57See Asser, Mijnssen, van Dam and van Velten, ‘Zakelijke Rechten’, no. 115.

58Kleijn, Vruchtgebruik, no. 1. 59 de Vries, ‘Erfpacht en opstal’, p. 84.

In addition, according to provisions of the Civil Code on possession, B (whether as usufructuary or as holder of a personal servitude, a lifetime habitation or a perpetual usufruct) will be treated as a possessor and will therefore have access to the following remedies:

(a)B can restore his/her possession by using self help: if B was present when the dispossession was attempted, he/she may even use force against the dispossessor (Civil Code, art. 343, §1);

(b)B can restore his/her possession by acting personally without undue delay after dispossession occurred, as long as he/she does not use force against the dispossessor (Civil Code, art. 343, §2); or

(c)if the above do not apply to the facts of the case, B can bring a possessory claim to restore his/her possession.

B does not have to be in good faith or even have a legal title to possess the thing. The court will only determine which person was in peaceful possession of the property and restore possession to that person. The possessory claim prescribes after one year. The action can be brought against C or D if dispossession occurred in D’s favour (Civil Code, art. 344). D does not have to take part, but C must dispossess B in order for D to become the possessor.

In possessory claims it is immaterial whether dispossession occurred by force. If dispossession occurred by fraud, then one would have to consider provisions on mistake and the possibility of B rescinding the contract in writing within one year of finding out about the mistake. This will invalidate any legal transaction which brought about his/her dispossession (Civil Code, art. 88).

Portugal

In all the above situations, B’s right is protected against both C and D. Under Portuguese law, the kind of control that a tenant or borrower for use acquires over the property under a contract of lease or loan for use, amounts to mere detention and not to possession of the property. Nevertheless, Portuguese law extends possessory protection to some detentors, inter alia the tenant and the borrower for use. The tenant has the same protection as the possessor when he/she is deprived of or disturbed in the exercise of his/her rights (Civil Code, art. 1037). This remedy may be sought even against the landlord, if the latter disturbs the control of the tenant or prevents him from exercising his/her right. Similarly, the borrower is entitled to use the possessory remedies to

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have his/her possession restored (Civil Code, art. 1133 no. 2). These remedies can even be used against the lender who obstructs or restricts the use of the property. It must be noted, however, that as a general principle the lender does not have a duty to protect the borrower against attacks from third parties (Civil Code, art. 1133 no. 1). This means that under Portuguese law the tenant and the borrower enjoy the same protection of possession as the holders of real rights, owing to their physical control over the property.

Since a duly registered personal servitude is recognised as a real right under Portuguese law, B has a right of pursuit of the property against any person (C or D) in unlawful possession of the property. If B can prove that he has a real right over the property and that C or D is in possession of the property, B can petition the court for a declaration of his/her rights and a mandatory order against C or D for the return of the property (Civil Code, art. 1311 read with art. 1315).60 The exercise of this remedy is not subject to a time limit (Civil Code, art. 1313).

Apart from this quasi-vindicatory remedy, B can also rely on the remedies for the protection of possession. Possession (posse) is the de facto control over an object that is manifested by an activity corresponding to the exercise of ownership or another real right of use over the property (Civil Code, art. 1252). Since the holder of a personal servitude acquires a real right over the property, his/her factual control is recognised as quasi-possession, and not merely as detention (detencüa÷o) of the property. Therefore he is entitled to institute a claim for the recovery of lost possession (accüa÷o para a restituicüa÷o da posse, corresponding to the Roman interdictum recuperandae possessionis). B will therefore have a claim for restitution of his/her possession on account of wrongful deprivation of the factual control over the property (Civil Code, art. 1277). Restitution will be ordered without a consideration of the merits of the case, for example, an investigation concerning the right of ownership (Civil Code, art. 1278). The deprivation need not be by force or fraud – any unlawful deprivation would suffice. Nevertheless, if the dispossession was effected by the use of violence against the property or the person61 of the former possessor, the court may order summary

60Decision of the Supreme Court of Justice of 04.10.84 [Process 071598], available at www. dgsi.pt.

61See Decision of the Supreme Court of Justice of 25.11.98 [Process 98B410], available at www.dgsi.pt. The Supreme Court of Justice of 25.06.98 concluded that the breaking of a door in order to gain possession of a building amounts to violence against property.