PROTECTION OF PROPERTY RIGHTS
In everyday life, we often need to protect property rights over real estate, which may be threatened, disturbed, violated, or even taken away, with another party exercising it. In these various scenarios, we need to protect it by undertaking factual or legal actions.
The main lawsuits for protecting property rights according to our legislation are:
Rei vindicatio action (vindicatory action) - to establish property rights and restore possession when it has been taken by another party
Negatory action - when unlawful, unfounded actions that hinder the full exercise of our property rights must be terminated
Declaratory actions - which recognize property rights, and here we should distinguish between positive and negative declaratory actions respectively
Action for boundary determination - between objects of property rights
It should be noted that each lawsuit has its own specifics, and considering all circumstances and factual relationships, one must determine which is most appropriate in the specific case to protect our rights and interests related to property.
Rei vindicatio action is brought by a non-possessing owner against a possessing non-owner, with the aim of having them return the property. This action has two parts: the court is asked to establish our property right and, accordingly, to restore our possession of the property with its decision. The property is in the defendant's possession and they hold it without legal basis. We may also have a claim for damages in connection with the unlawfully taken possession.
Negatory action is for terminating any unfounded action that prevents the owner from fully exercising their property right, although they still possess it. It is used when the property is subject to actions that interfere with normal use. The court orders the defendant to cease their actions, and accordingly, we can demand restoration of the legally established state.
Declaratory action is when there is a dispute regarding the property right itself and there are claims from different persons for its ownership. This action does not affect possession.
As I already mentioned, there are positive and negative declaratory actions, and between them there are many and substantial differences related to the request to the court, the burden of establishing certain circumstances, and the cases in which they are used. There is mandatory and established case law of the Supreme Court of Cassation, which has evolved over the years and should be well understood.
Action for boundary determination - to establish the exact boundaries between adjacent properties. It is used when there is uncertainty or dispute regarding the exact boundaries of the real estate.
