Action to recover property

According to point 2A of Supreme Court of Cassation Interpretative Decision No. 4/2014 of 14.03.2016, an action to recover property is brought by an owner who is not in possession against a possessor who is not the owner.

The subject matter of the proceedings is the claimant’s right of ownership. The action comprises two cumulative requests for legal protection: a declaration that the claimant owns the disputed property, whether immovable or movable, and an order requiring the defendant to surrender possession to the claimant. Both requests must be addressed in the operative part of the judgment. The judgment’s res judicata effect concerns the subject matter of the proceedings: in this case, the right of ownership asserted by the claimant on the stated basis.

Under Article 77 of the Ownership Act (ZS), ownership is acquired through a legal transaction, by acquisitive prescription or in another manner prescribed by law. Consequently, a claimant bringing an action under Article 108 of the ZS must set out in the statement of claim the basis of acquisition within the meaning of Article 77 on which they claim to have acquired ownership of the property in respect of which they seek a declaration of ownership and surrender of possession. Failure to state the basis of the claim, that is, the facts alleged to give rise to the disputed ownership right, renders the statement of claim procedurally defective within the meaning of Article 127(1)(4) of the Code of Civil Procedure (GPK). Before the case may proceed and evidence be gathered, the statement of claim must satisfy Articles 127 and 128 of the GPK.

If you have questions about property law or the surrender of possession, it is best to consult a competent property lawyer who can provide qualified legal assistance.