Occupation of common areas and exclusion of co-owners: recovering possession under Article 108 of the Ownership Act

Disputes over the use of common areas often arise in joint ownership, particularly where several people own real estate together. One of the most serious problems is the unlawful occupation of common areas by one co-owner who prevents the other co-owners from using them. Where ownership rights have been infringed in this way, a co-owner may bring an action to recover possession under Article 108 of the Ownership Act.

Under Article 108, an owner may demand that anyone holding or possessing their property without legal grounds deliver it up. The action is also available between co-owners where one excludes the others from joint use of the shared property or part of it.

According to the case law, including the settled practice of the Supreme Court of Cassation, each co-owner may use the shared property in proportion to their share, without obstructing the others. If one co-owner makes exclusive use of a particular part and denies the others access, this infringes their ownership rights and gives them grounds to seek recovery of possession.

In these cases the court examines:

• Evidence of co-ownership;
• Facts showing that access to the property was denied without justification;
• The absence of a contractual or statutory basis entitling the defendant to exclude the claimant from using the property.

An action under Article 108 is therefore available not only when an outsider entirely deprives an owner of possession, but also between co-owners where one co-owner’s conduct effectively excludes another.

The claimant must establish that:

1. They own the property or an undivided share in it;
2. The defendant has exclusive possession of, or exclusively holds, part of the property;
3. There are no legal grounds justifying that conduct.

If these conditions are established, the court grants the claim and orders the defendant to allow the co-owner to use the common area. The judgment requires the defendant to act: they must deliver up possession or stop obstructing the claimant.

An action under Article 108 of the Ownership Act is an effective remedy for co-owners excluded from using shared property. It restores the balance between the co-owners and gives effect to the principle that they are entitled to use the common areas together.