INTERFERENCE WITH POSSESSION
Pursuant to the Act on Ownership and Other Real Rights any person who has legal power over a thing/right or over only a part of a thing/right is its possessor. Several people who have possession of the same thing or right are its co-possessors. Possession is gained when the acquirer establishes his/her legal power over a thing. Legal power over a thing can be defined as the ability to exercise any kind of power over a thing without constant physical contact having to be present. For example, we do not have to constantly be physically present in an appartment that we have in possession. Possession is not terminated if the posessor was temporarily unable to exercise his/her power over a thing.
Possession is lawful if the possessor has a valid legal foundation for the possession (the right to possession). Possession is truthful if it was not obtained by force, covertly or by fraud, or by abusing someone’s trust. Possession is fair if at the time of acquisition the possessor did not know, and in view of the circumstances, did not have any reason to suspect that he/she did not have the right to such possession. Possession is deemed fair unless proved otherwise. Fairness of the possession depends whether the possessor knew or suspected that he/she did not have the right to such possession.
Arbitrary interference with the possession is prohibited; regardless of the nature of the possession. The possession is being interfered with if the possessor is being obstructed from exercising his/her power over the possession, e.g. if the locks on the front door of the property have been changed. The possessor has the right to protect their possession within thirty days of finding out about the act of obstruction and about the perpetrator, and at the latest within one year from the date on which the obstruction began. The right to protect one’s possession is exercised either in a special procedure in court or by self-help. The court procedure involves a procedure for obstruction of possession, i.e. filing a lawsuit for interference with possession. The court extends this kind of protection in a special summary proceeding (procedure for obstruction of possession), based on the latest state of possession and obstruction, regardless of the right to possession, the legal foundation and the possessor’s fairness.
The court determines that the defendant has committed the act of interference with possession, orders that the possession is re-established as it was at the time of obstruction, and prohibits such or similar obstruction in the future under caution of legal execution.
Another way to protect one’s possession is by self-help. Any person whose possession has been interfered with has the right to protect their possession by force from those who arbitrarily take their possession away or who obstruct their possession. This is a reaction by the possessor to defend themselves from the obstruction, however, it is important not to cross the line of permissible self-help.
This right is bound by the following conditions:
- the possession has been arbitrarily obstructed
- permissible self-help must occur within thirty days, i.e one year after the obstruction
- it is necessary because court protection would arrive too late
- the danger of interference with the possession is immediate
- only if the person does not apply force greater than required under the circumstances to protect their possession (permissible self-help).
The objective of court protection and permissible self-help is to re-establish possession as it was at the time of obstruction. It should be highlighted that possession is substantive from ownership. In other words, one person can be the possessor and another the owner of the same thing. Accordingly, ownership is determined in separate proceedings.