Recovering possession: an owner’s claim under Article 108 of the Ownership Act

An action for recovery of possession based on title, provided for in the Ownership Act, is a principal means of protecting ownership when the owner has been deprived of possession of the property (Article 108 of the Ownership Act). This traditional action in rem seeks to restore possession by returning the property to its rightful owner.

The claim is brought against someone who possesses or holds the property without legal grounds. This may be a third party who never had a right to use it, a former lawful user (such as a tenant) who remained after the agreement ended, or a co-owner.

For the claim to succeed, three main elements must be established:

1. The claimant’s ownership. This is the main issue to be proved and may be established by a notarial deed, a contract, a final court judgment or other evidence;
2. Actual possession or holding of the property by the defendant;
3. The absence of legal grounds for that possession or holding.

The action is available against third parties and also between co-owners where one excludes the other from using the shared property. In that case the claimant may seek restoration of joint possession to the extent of their undivided share.

A judgment granting the claim orders the defendant to deliver up possession of the property. Unlike a purely declaratory action, the court both recognises the right and orders a specific act.

Case law emphasises that the conditions for granting the claim are assessed at the close of the evidentiary stage of the proceedings. This allows the court to take into account all relevant circumstances up to that point.

The action is particularly important where people take matters into their own hands by occupying property, or where neighbours, relatives or people without title use it unlawfully. It is an effective means of restoring the position to which the owner is legally entitled.

An action under Article 108 of the Ownership Act is therefore an important remedy for any owner deprived of the effective exercise of their rights. When the necessary facts are proved, the action restores physical control of the property and protects one of the most fundamental rights: ownership.

This article does not provide a legal opinion or legal advice about any particular situation or person. For assistance with a property matter, consult a lawyer who practises property law.