Sometimes a person is in actual possession of real estate but, for various reasons, is not its owner. Even such a possessor has the right to protect their possession until they acquire ownership. This protection is available against third parties who are not owners of the property and have no legal or contractual basis for possessing it. Its purpose is to restore possession that has been interfered with, prevent it from being ended arbitrarily and ensure the continuity needed to acquire ownership later.

Disputes over this kind of protection of possession are extremely rare in case law. Market participants may therefore be unaware not only that possession can be protected through a possessory claim but also of its key features.

In this article we look at what possessory protection is, who an acquisitive-prescription possessor is, who may bring a possessory claim and when, and what must be proven for the claim to succeed.

What possessory protection is

Possessory protection is a mechanism for restoring actual possession of property of which an acquisitive-prescription possessor has been unlawfully deprived. Although the possessor has not yet acquired ownership, the law allows them to protect their possession against third parties who are not owners and have no legal or contractual basis for possessing the disputed property (Article 234(2) of the Civil Code).

The purpose of possessory protection is not to recognise ownership but to return the property to the possession of the person who possessed it in good faith, openly, continuously and as their own. This makes it possible to restore the possession interfered with and preserve the continuity of the prescription period needed to acquire ownership later.

An acquisitive-prescription possessor can protect their possession by bringing a possessory claim in court against the person who has come into unlawful possession of the property (the defendant).

To do so, all of the following must be proven:

• The possessor was unlawfully deprived of possession of the property against their will;
• The possessor possessed the specific property before their right was violated;
• The possession met the criteria of good faith, openness, continuity and possession as one's own;
• The property is in the defendant's actual possession;
• The defendant has no ownership or other legal or contractual basis for possessing the disputed property.

Who is an acquisitive-prescription possessor

Ownership of real estate may be acquired by a person who has possessed it in good faith, openly and continuously as their own for 15 years (Article 234(1) of the Civil Code). An acquisitive-prescription possessor is a person who meets all these criteria but, for some reason, has not yet acquired ownership of the property.

Criteria of acquisitive-prescription possession

Whether the criteria of acquisitive-prescription possession are met is determined as follows:

• Possession is in good faith if, when obtaining possession of the property, the person did not know and should not have known that there were no grounds for them to acquire ownership.

At the same time, the Supreme Court allows ownership to be acquired by prescription even where the possessor understood or should have understood that they had no formalised title to the property.

For possession to be recognised as in good faith, what matters above all is that the person obtained the property not arbitrarily or through unlawful actions but in circumstances that appeared lawful. It is not required that the possessor mistakenly believed themselves to be the owner throughout the entire prescription period.

Any other approach would in effect make acquisitive prescription inapplicable to real estate. Information on rights to real estate is held in a public register, so a long-term possessor can usually establish that ownership is not registered in their name. That alone should not prevent ownership from being recognised if the person openly possesses the property as their own, maintains it, bears the costs and does not infringe the rights of others (Resolution of the Constitutional Court No. 48-P of 26.11.2020).

• Possession as one's own means possession not under a contract. For this reason, persons who possess property under contractual obligations (lease, storage, gratuitous use, etc.) cannot be recognised as acquisitive-prescription possessors and cannot protect their rights in this way.
• Possession is open if the person does not conceal that the property is in their possession.

Note that taking ordinary measures to keep the property safe does not amount to concealing it. In practice, openness is confirmed by documents and actual conduct showing that the person publicly uses and/or maintains the property as being in their possession: maintenance contracts and payments, operational and business documentation, applications to authorities and counterparties, and other evidence of actual control over the property.

• Possession is continuous if it has not ceased throughout the entire prescription period.

Note also that possession is not interrupted if a person who temporarily lost possession of the property recovered it from another person's unlawful possession.

Furthermore, the transfer of the property by the possessor into another person's temporary possession does not interrupt acquisitive-prescription possession.

C Cases practice

The Moscow Arbitrazh Court is currently hearing a case in which the C Cases team represents the acquisitive-prescription possessor of part of a building that left their ownership as a result of a series of lengthy court proceedings. The legal position rests on the combination of the criteria of acquisitive-prescription possession, the lack of ownership of the person actually occupying the building, and the results of a court-ordered construction and technical expert examination requested by our team.

The case is complex because the right of acquisitive-prescription possession has to be proven not in a vacuum but against the background of earlier court decisions that formalised the transfer of possession of the building to another person. The team therefore needs to build its legal position so that the combination of the criteria of good faith, openness and continuity of possession withstands scrutiny in light of this history. Given the very limited case law, C Cases needs a multi-stage strategy capable of convincing the court that the possessor's claims are well founded. Cases like this confirm that possessory protection, rare as it is in practice, remains an effective tool for restoring the rights of those who possess property in good faith and openly but have not yet become its owners.

Sources

• Civil Code of the Russian Federation (Part One) No. 51-FZ of 30.11.1994;
• Joint Resolution No. 10 of the Plenum of the Supreme Court and No. 22 of the Plenum of the Supreme Arbitrazh Court of 29.04.2010 "On Certain Issues Arising in Judicial Practice When Resolving Disputes Related to the Protection of Ownership and Other Property Rights";
• Resolution of the Constitutional Court No. 48-P of 26.11.2020;
• Ruling of the Judicial Chamber for Civil Cases of the Supreme Court No. 127-KG14-9 of 27.01.2015;
• Ruling of the Judicial Chamber for Civil Cases of the Supreme Court No. 5-KG18-3 of 20.03.2018;
• Ruling of the Judicial Chamber for Civil Cases of the Supreme Court No. 78-KG19-29 of 17.09.2019;
• Ruling of the Judicial Chamber for Civil Cases of the Supreme Court No. 4-KG19-55 of 22.10.2019;
• Ruling of the Judicial Chamber for Civil Cases of the Supreme Court No. 4-KG20-16 of 02.06.2020.