restitution without giving the dispossessor an opportunity to defend himself/herself (Civil Code, art. 1279).

In the most urgent cases, the holder of a real right who is deprived of his/her possession can use self-help to restore the status quo (Civil Code, art. 316 read with arts. 314 and 1315).

The claim for restitution can be pursued not only against the dispossessor and his/her heirs but also against any third person who acquired possession of the property with knowledge of the unlawful dispossession (Civil Code, art. 1281, no. 2). Consequently, B has a possessory remedy against both C and D to have his/her possession restored. B can sue the dispossessor within a year of the deprivation or in the case of clandestine deprivation within a year after it came to his/her knowledge. In appropriate circumstances, B is entitled to institute a claim for damages (Civil Code, art. 1284).

Scotland

As a tenant or as a proper liferenter, B may act directly against C to recover the property. There are two bases on which B may do so.62 The first is by asserting his/her right in the property which gives B a right to possession. Like ownership, both lease and liferent are real rights which confer upon their holder a right to possession of the property which is good against the world.63 There are rules about the extent to which B must prove his/her title to the property. This depends on the defence advanced by C.64 As this claim is based on B’s right to possession, it can be advanced against both C and D, regardless of the circumstances in which they acquired possession.65

The second alternative is for B to rely upon spuilzie – the delict of vitiously dispossessing another.66 In respect of heritable property, spuilzie is more specifically known as ejection. Although at one time actions of spuilzie were very frequent, they are now virtually unheard of due to greater civil order and the increasing ease with which title to land may

62See generally in respect of actions protecting the possession of land, Reid et al., Property, paras. 138–47, 151–7 and 161–6.

63Ibid. para. 141. 64 Ibid. paras. 142–7.

65Subject to it potentially being defeated by registration in the Land Register if, for some reason, the liferent were omitted from C’s or D’s title sheet. In those circumstances, B’s remedy will be for rectification of the Register, or, if that is not available, indemnity from the Keeper of the Registers: LR(S)A 79, s. 9 and 12.

66Reid et al., Property, paras. 161–6.

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be proven, which makes it easier to rely on one’s right to land as the basis for one’s claim. There is some discussion about whether spuilzie/ ejection is a purely possessory remedy or whether B has to show some kind of right to the property in order to be able to bring such an action.67 Professor Reid’s68 view is that it is a purely possessory remedy. Holders of subordinate rights can have possession. A tenant certainly has possession69 and logically so too does a liferenter. Both could therefore rely upon this second type of claim. There is no requirement that the dispossession must have been by force or fraud, but it must have been without B’s consent and without judicial warrant.70 In respect of heritable property, spuilzie is not a vitium reale (a real vice)71 and so B cannot use this remedy to recover possession from D.

In both types of claim to recover possession, in addition to claiming the return of the property, B is entitled to recover violent profits from D. This is an accounting in respect of the amount which the property might have yielded by the utmost diligence during the period in which possession was wrongfully withheld.72 In urban subjects, these are customarily double the rent.73

South Africa

South African law regards a tenant as a possessor and not as a mere detentor. Consequently, B can institute a possessory remedy (mandament of spolie) against any person who has unlawfully deprived him/her of his/ her possession.74 This remedy is based solely on factual possession by the tenant and is available in all cases of unlawful deprivation and not only if the dispossession is the result of force or fraud.75

In addition, the tenant’s real (property) right gives him/her a right of pursuit against anyone in possession.76 South African courts recognise this in the case of a short lease. However, in the case of a registered long lease, the courts have confused the South African vindicatory remedy with the tort of trespass of the English law, which deals with the

67 Ibid. para. 162. 68 Ibid. para. 125; Gordon and Wortley, Land Law, para. 14–05.

69Reid et al., Property, para. 125; Gordon and Wortley, Land Law, para. 14–05.

70Reid et al., Property, para. 164. 71 Stair, Institutions, II. xxx. 3.

72Reid et al., Property, paras. 167 and 169; Gordon and Wortley, Land Law, para. 14–29.

73Jute Industries Ltd. v. Wilson and Graham Ltd. (1955) 71 Sh Ct Rep 158 159.

74Nino Bonino v. De Lange 1906 TS 120.

75Van der Merwe, De Waal and Carey Miller, ‘Property and Trust’, s. 167.

76Cooper, Landlord and Tenant, p. 277 and authorities cited in n. 27.

wrongful disturbance of another’s possession and makes the tenant’s real action dependent on possession.77 Thus B as the holder of a registered long lease may only eject D if he/she (B) has entered into possession. If not, the registered owner (landlord A) would be the proper person to sue for the ejection of the trespasser.78 However, the better view is that the tenant of a long lease acquires a real right by registration without occupation which is ex hypothesi enforceable against any possessor, including D. B only has to prove his/her real right and that D is in possession of the property. In fact, both the registered owner (A) and the registered tenant (B) have a right to eject D.79

Holders of personal servitudes in occupation are regarded as possessors. Therefore B will have a mandament of spolie against C for restoration of possession on account of wrongful deprivation of the peaceful exercise of the servitude without having to prove his/her right to the servitude.80 Where the dispossessor (C) has transferred the property to D, case law requires knowledge on the part of D before a possessory action (mandament) can be brought against him/her for speedy recovery of the property. Academic opinion is against such extension of the remedy and requires some kind of co-operation in the spoliation before the action can be brought against D.

The rationale for the possessory remedy is to prevent self-help and it is therefore available to all possessors deprived unlawfully of their factual control of the property. It is therefore also available to the precarist (under a precarium) and the borrower for use (under a commodatum).81 South African law has thus by analogy extended the possessory remedy to all holders except persons who hold as servants or quasiservants on behalf of another.

In principle, B as holder of a personal servitude acquires a real right in the property and consequently he/she may recover the property from any possessor (D). In modern South African law the Roman-Dutch proprietary remedy (actio confessoria) was unfortunately confused with the remedy of interdict (injunction) of the English law. The holder of a personal servitude must therefore approach the court for a declaration of his/her rights and request a mandatory interdict against D to restore the status

77See Turpin, ‘Right of Ejectment’, pp. 145, 147.

78BodasinghÕs Estate v. Suleman 1960 1 SA 288 (N) 291C-D.

79Cooper, Landlord and Tenant, pp. 277–80.

80Bon Quelle (Edms) Bpk v. Munisipalitiet van Otavi 1989 1 SA 508 (A).

81Van der Merwe, De Waal and Carey Miller, ‘Property and Trust’, s. 160.

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quo ante.82 This remedy does not extend to the precarist and the borrower for use because they only have personal rights with regard to the land.

Spain

All the aforementioned holders (tenant, usufructuary, usuary, habitator and borrower) obtain possession of the property. The only exception is the holder of a superÞcies, who, in addition to obtaining possession of the property, also becomes a time-limited owner of the building or the produce of things planted or sown on the soil. If any of these holders (including the superÞciary) is disturbed in their possession by a third person (C), they can approach the court for an action to restore their possession. This action was formerly called an interdict (interdicto), but is currently described as ‘the action to protect the possession of a thing or a right against those who dispossess or disturb (B’s) possession’ (Code of Civil Procedure, art. 250.1–4). Spanish law does not appear to make a distinction between possessors and detentors and allows any person in physical control of the property to bring the action, irrespective of his/her title.83 The action must, however, be instituted within one year from the date of the dispossession or disturbance (Civil Code, art. 1968.1).

There are two opposing views on the question of whether B can act directly against D who acquired possession of the property from C. One group of authors, supported by most of the court decisions, will not allow B to proceed against D, especially if D acted bona Þde.84 On the other hand, another group reckons that the protection given to the possessor can be exercised – in the first year after the dispossession – against anyone who possesses but has not yet acquired ownership of the property,85 irrespective of his/her bona or mala Þdes.

In Spanish law it is immaterial whether the dispossession occurred by force, fraud or in any other way. The only matter that can affect the situation is where D has acquired possession of the property in bad faith (mala Þde) from the dispossessor C. In such a case B can proceed against D. This is also the position where C or D has committed a crime.

82Ibid. s. 736.

83Lacruz Berdejo, Elementos, vol. 3.1, p. 43. Dı´ez-Picazo, Fundamentos, vol. 3, p. 645 expressly mentions the usufructuary, the tenant and the holders of a superÞcies and a loan for use.

84de los Mozos, Tutela interdictal; Martin Pe´rez, ‘Comment’.

85Lacruz Berdejo, Elementos, vol. 3.1, p. 44; Garcia Valdecasas, ‘La posesio´n incorporal’, p. 336.

In such a case, the Criminal Court will order the dispossessor to restore possession.

The usufructuary, the holder of a right of use or habitation, and a hereditary building lease (superÞciarius), as holders of limited real rights, can also make use of the actio confesoria. This is an action addressed to obtain a judicial declaration of the time-limited holder’s right which is used when someone (C) disputes the holder’s limited right.