Violations of the right of ownership over real property take two principal forms: unlawful occupation by a person who refuses to vacate, and interference with or restriction of the owner's peaceful enjoyment of the property. This article addresses the first scenario — where the owner has been deprived of possession, whether by a tenant refusing to leave, or by any other person holding the property without legal title.
1. Legal framework
Protection of a dispossessed owner against a possessor without title is provided through the revindication claim under Art. 108 of the Property Act. It is an action in rem — directed at the proprietary right itself — and is not subject to a limitation period.
2. Conditions for the claim to succeed
Three conditions must be satisfied simultaneously for the revindication claim to be upheld:
- The claimant holds title to the property. Ownership is established by title documents — a notarial deed, a restitution decision, a notarially executed sale agreement, or equivalent.
- The property is in the possession or detention of another person. This fact is proved principally through witness testimony.
- Possession is held without legal title. The defendant must be a trespasser — lacking any contract, licence or other legal basis entitling them to occupy the property.
3. Limitation period
The revindication claim is imprescriptible — it is not extinguished by the passage of time. An owner may seek protection under Art. 108 of the Property Act at any point, provided the right of ownership has not been lost through another mechanism recognised by law.
4. Compensation for use of the property
A claim for compensation equal to the lost rental income may be joined to the revindication action. Compensation is owed from the date on which a formal demand was sent to the unlawful occupant, or from the date on which proceedings were commenced. The monthly rental value of the property is determined in most cases following a court-appointed valuation expert's report.
5. Expedited protection under Art. 417 of the Code of Civil Procedure
In certain circumstances an owner may obtain an enforcement writ directly, without conducting a full revindication trial. This is done by filing an application for a writ of immediate enforcement under Art. 417 of the Code of Civil Procedure, which significantly reduces the time to effective protection. The mandatory conditions for this procedure are:
- the owner must hold a notarial deed to the property;
- the identity of the person unlawfully occupying the property must be known.
6. Enforcement of the judgment
Once a judgment in the revindication proceedings becomes final, the court issues an enforcement writ. The owner presents the writ to a bailiff, who carries out enforcement of possession with the assistance of the police. The person ordered to surrender possession is forcibly removed from the property.
How we can help
We advise property owners on choosing the appropriate remedy — a revindication claim or expedited proceedings under Art. 417 CCP — and represent clients throughout the litigation and enforcement stages until actual reinstatement in possession. Contact us for an assessment of your specific situation.
Note
This article is for general information only and does not constitute legal advice. Legislation changes over time — for current, binding guidance on your case, please contact us.