Introduction to Civil Law: Protection of Possession and Acquisitive Prescription (Adverse Possession) PDF

01/11/2024 Introduction to Civil Law: Protection of Possession and Acquisitive prescription (adverse possession) Dr. Aleksandrs Fillers, LL.M...

01/11/2024 Introduction to Civil Law: Protection of Possession and Acquisitive prescription (adverse possession) Dr. Aleksandrs Fillers, LL.M Associate Professor 1 Three Different Concepts Acquiring ownership after some Good faith acquisition § Protection of period of possession (discussed in contract law possession (adverse/acquisitive possession) course) (instant adverse/acquisitive possesson) 2 1  01/11/2024 Functions of Possession Original ownership can be obtained through possession: e.g., finding things that have no owner; hunting animals Derivative ownership (in Latvian law) is obtained through possession for movable property: e.g. delivery of a car after a contracts was concluded Possession is an element of “adverse possession”: obtaining ownership after long-term possession Possession is protected on its own (without any regard to ownership) 3 Latvian (Roman) System of Protection of Possession § Possessor: control of the thing + intention to hold the thing for him/herself (LCL Art. 875-876) § Legal and illegal possession (illegal – taken by force or without the knowledge of the owner) (Art. 909) § Good/bad faith: knowing/not knowing that somebody has better rights over the thing (Art. 910) 4 2  01/11/2024 Latvian (Roman) System of Protection of Possession § Who is possessor? A thief is a possessor, somebody who bought the thing from a non-owner, owner is also a possessor (while controlling the thing) § Who is not possessor? Tenant, a user of a thing that belongs to another = holders (factual possessor) § Did it make a difference? Yes, in Roman law - > there was no possession protection for the holder § LCL 876: progressive development: even a holder (factual possessor) can reclaim the property as a possessor (different from Roman Law) 5 Protection of possessor: Possessory Claims § Possessor (holder) can reclaim the thing (LCL Art. 920) – movable or immovable - or ask protection from interference (LCL Art. 915) § The owner can bring a claim against the possessor and get control over the object via a court, provided he/she can prove ownership and that the possess controls the thing without a legitimate reason (usually, a contract with the owner) § Important exceptions: if the defendant shows that the claimant without defendant’s permission unlawfully deprived the defendant of his possession, then the claimant’s claim will be rejected: this is a special defense against possessory claims: LCL Arts. 917/922 Possessory claims must be brought during 1 year after the infringement (LCL Arts. 925) 6 3  01/11/2024 Examples: Latvian approach § 1) A stole a car from D. Nobody can physically take that car away or prevent D from using it (except police). D can reclaim it from a person who takes it. § If A stole D’s car: D can reclaim it from him --- > even without proving ownership § 2) B owns a land. A is a lessee (user) of that piece of land. A’s neighbor is burning leaves; smoke goes to A’s land; A cannot work because of that. § Although only a holder, A can request that the neighbor stops interfering with his ‘possession’ (based on Art. 876) 7 Possession in Latvian: final remarks § Good/bad faith possession: not relevant for protection of possession § Bad faith possession is also protected --- > but relevant for acquisitive prescription § Legal/illegal possession: mostly relevant in one case: § A robbed B, taking his car and then B took (stole) his car back: § If A brings a possessory claim for return of the car against B: B has a defense proving that A established illegal possession by robbing/stealing from the very B --- > this special defense provided by LCL Arts. 917/922 § B loses the case: if he all that he can prove is that A obtained illegal possession by robbing C --- > B will not be able to rely on the special defense provided by LCL Arts. 917/922 8 4  01/11/2024 DCFR VIII: 1:205 and further (only for movables) § Owner-possessor: control and considers itself an owner § E.g.: 1) real owner, 2) person who bought from a non-owner/invalid contract, 3) thief/robber; 4) person used the thing under a contract and now does not return the thing § Limited rights possessor : control + legal relation giving control + intention to hold goods for himself or the owner-possessor (in case of storage) § E.g., lease, loan for use (bail), storage etc. § LRP = holder (factual possessor) in the LCL § Direct possessor vs indirect possession: depending upon the control: e.g., owner – indirect owner possessor, while lessee - direct limited rights possessor 9 Comparison Possessor (CL): Owner possessor (DCFR): Has possessory claims Has possessory claims LRP (DCFR): Has possessory claims Holder (CL): Has possessory claims CL Art. 876 (final note) 10 5  01/11/2024 DCFR Examples § 1) Company A owns a car: direct possessor/owner possessor. § 2) A leases the car to company B: § Company B - direct limited rights possessor (control + contract of lease and intention to possess it for its own benefit) § A – indirect owner possessor 11 Examples § 3) A concludes a contract with company B: to leave the car safeguarded by B. § A – owner possessor/indirect possessor; § B - direct /limited rights possessor (control + contract + intention to possess it for the owner) 12 6  01/11/2024 DCFR: 2 different types of possessory claims § Unlike LCL, DCFR provides two forms of possessory claims § Protection of mere possession (Art. VIII. – 6:203): only against the person who unlawfully took the possession; and only within 1 year, but the claimant does not need to prove anything except that: 1) claimant had possession; 2) defendant unlawfully deprived him of the possession; 3) and that the defendant still keeps the thing under his control § The defendant has a special defense under Art. VIII. – 6:203(3) § Protection of better possession: can be used after 1-year period and can be brought against any person exercising physical control over the thing § However, in this case the claimant has to prove that his possession is better § For details on the “better” possession, see the commentary to Arts. VIII. – 6:301 and VIII. – 6:302 13 DCFR Protection of Possession: Art. VII.-6:201, 202, 203, 204; 301 § 1) A has a car. B has stolen it. § A can claim recovery from B: one year time § 2) B sold it to C: § A can recover neither from B – no possession; nor from C who had not deprived A of his possession (important difference from CL Art. 924) § Note: however, the DCFR compensates for this by introducing recovery of “better” possession (VIII. – 6:301) --- > but A would need to prove that his possession is better (for details, see DCFR commentary) § 3) A has leased his car to company D. § D’s driver N gave it to a friend H for ride. N cannot reclaim the car. A or D can ask the recovery from H. 14 7  01/11/2024 Acquisitive Prescription (Adverse Possession) under LCL Arts. 998-1031. Requirements: I § 1) For movables: not obtained through a crime (Art. 1003) § Irrespective of whether it was stolen by the possessor or a third party: if the movable was stolen it cannot be acquired by acquisitive prescription until it returns back to the person from him it was stolen § 2) Uninterrupted possession (holders never benefit from AP) 15 Acquisitive Prescription (Adverse Possession) under LCL Arts. 998-1031 Requirements: II § 3) A legal basis (with a defect) - Arts. 1006-1012. Most usually a contract intended to transfer property (sale, gift, barter) § It could also be a contract where the seller was a non-owner § 4) Good faith = not knowing that there are impediments to become owner (not being informed that somebody else considers him/herself also an owner) § Unlike DCFR: if there is bad faith AP is not possible § 5) Possession during: 1) for movables – 1 year; 2) for immovables – 10 years = good faith must be present all this time not only in the beginning of possession 16 8  01/11/2024 Latvian examples § In Latvian law AP has very limited importance for movables (see: Art. 1065 --- > we will discuss it in ”Contract Law” course); it has some importance for immovables (real estate) § 1) A bought a land lot from C. § LCL Art. 994: “Only such persons shall be recognised to be the owners of immovable property, as are registered in the Land Register as such owners.” A’s ownership was never registered in the Land Register. Later C transferred the lot as a gift to his brother K. Now K is registered as an owner. § If A will have 10 consecutive years of possession acquire property by acquisitive possession and will be able to sue the “registered” owner in court requesting the court to rule that A has to be registered as an owner. § Important: during those 10 years neither C, nor K have not informed A that they deny his rights over the land + A was able to preserve possession! 17 Latvian examples § 2) C owns a land lot. He makes a contract with A: A is given a lease – right to use the land for money. § A is only a holder and cannot become an owner (no possession element). 18 9  01/11/2024 AP under DCFR VIII.—4.101 (acquis. by continuous possession in terminology of DCFR) § Acquisitive prescription needs 3 elements: § 1) Owner-possession of goods: possessing goods like an owner § 2) Possessor (himself) has not stolen the goods § 3) 10 year possession in good faith (possessor reasonably believes to be an owner )/30 year in bad faith (knows/must know that is not an owner) 19 DCFR examples § 1) A bought a car from C, who was not an owner of that car, but only had a right to use it. Later D (the real owner) informed A that the car was his, but never did anything to reclaim it. After 30 years, A will become an owner. § Different from Latvian law solution ---- > in Latvia bad faith precludes AP § 2) A stole a car from Z. A sold the car to K, who was unaware that A was not the owner. After 10 years of possession, K will become an owner (if he will not be informed about the theft) § 3) Under contract Z is given a right to use B’s computer. There is no AP even after 30 years: Z - holder and does not act as an owner-possessor 20 10  01/11/2024 Comparison DCFR: AP by owner-possessor CL/DCFR: LRP (DCFR) and holder CL/Roman Law: Possessor (CL) cannot benefit from AP! No theft or theft by 3rd Theft by Theft for No legal possessor: Legal basis with a person movables: basis: NO defect NO AP! NO AP! AP! Bad faith: Good faith Bad faith Good faith NO AP! 10 years 30 years Movables: 1 year of Immovables: 10 year possession of possession 21 11