Possessory protection: how a possessory claim restores property without proof of ownership

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

The purpose of possessory protection is not to recognize ownership rights, but to return the property to the possession of the person who held it in good faith, openly, continuously, and as their own. This allows for the restoration of the violated possessory right and preserves the continuity of the acquisitive prescription period necessary for the subsequent acquisition of ownership rights.

An adverse possessor can protect their possession by filing a possessory claimin court against the person who has come to unlawfully possess such property (the defendant in this claim).

To do this, it is necessary to prove all of the following circumstances:

• The fact of unlawful deprivation of possession of the property against the will of the adverse possessor;
• The fact that the adverse possessor held the specific property before their right was violated;
• The compliance of the possession with the criteria of good faith, openness, continuity, and possession as one's own;
• The fact that the property is in the actual possession of the defendant;
• The absence of ownership rights or any legal or contractual basis for the defendant to possess the disputed property.

Ownership of real estate can be acquired by a person who has possessed it in good faith, openly, and continuously as their own for 15 years (Clause 1, Article 234 of the Civil Code of the Russian Federation). An adverse possessor is a person who meets all the aforementioned criteria simultaneously but, due to certain circumstances, has not yet acquired legal title to the property.

Compliance with the criteria for adverse possession is determined as follows:

• Adverse possession is considered in good faithif the person, upon taking possession of the property, did not know and should not have known that there was no legal basis for their ownership.

At the same time, the Supreme Court of the Russian Federation allows for the acquisition of ownership by prescription even in cases where the possessor understood or should have understood that they did not have formal legal title to the property.

To recognize possession as being in good faith, it is primarily important that the person did not obtain the property through unauthorized or unlawful actions, but rather under circumstances that appeared lawful on the surface. Furthermore, it is not required that the possessor mistakenly believed themselves to be the owner throughout the entire prescription period.

Any other approach would effectively make adverse possession inapplicable to real estate. Information about property rights is contained in a public registry, so a long-term actual possessor can usually determine that ownership is not registered in their name. This circumstance alone should not prevent the recognition of ownership if the person openly possesses the property as their own, maintains it, bears expenses, and does not violate the rights of others (Resolution of the Constitutional Court of the Russian Federation No. 48-P dated November 26, 2020).

• Possessing property as one's own means possession not based on a contract. For this reason, persons who possess property based on contractual obligations (lease, storage, gratuitous use, etc.) cannot be recognized as adverse possessors and cannot protect their rights in this manner.
• Adverse possession is considered openif the person does not conceal the fact that the property is in their possession.

Note that taking standard measures to ensure the safety of the property does not constitute concealment. In practice, the openness of possession is confirmed by documents and actual actions showing that the person publicly uses and/or maintains the object as being in their possession: service contracts and payments, operational and business documentation, communications with authorized bodies and counterparties, as well as other evidence of actual control over the property.

• Adverse possession is considered continuousif it has not been interrupted throughout the entire prescription period.

It should also be noted that adverse possession is not interrupted if a person who was temporarily out of possession of the property reclaimed it from another's unlawful possession.

Furthermore, the transfer of property by an adverse possessor into the temporary possession of another person does not interrupt the period of adverse possession.

The Moscow Arbitration Court is currently hearing a case in which the C Cases team is representing an adverse possessor of a building section that was lost due to a series of lengthy legal proceedings. Our legal strategy is based on the combined criteria for adverse possession, the lack of ownership rights by the party currently occupying the building, and the results of a forensic construction and technical expert analysis requested by our team.

The complexity of this case lies in the fact that the right of adverse possession must be proven not in a vacuum, but against the backdrop of existing court rulings that formalized the transfer of the building to another party. Consequently, our team must structure our legal position so that the combined criteria of good faith, openness, and continuity of possession can withstand scrutiny in light of this history. Given the extremely limited judicial precedent, the C Cases team is required to employ a multi-stage strategy capable of convincing the court of the validity of the adverse possessor's claims. Cases like this confirm that the institution of possessory protection, despite its rarity in practice, remains an effective tool for restoring the violated rights of those who possess property in good faith and openly, even if they have not yet become its legal owners.

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Sources

• Civil Code of the Russian Federation (Part One) No. 51-FZ of November 30, 1994;
• Resolution of the Plenum of the Supreme Court of the Russian Federation No. 10 and the Plenum of the Supreme Arbitration Court of the Russian Federation No. 22 of April 29, 2010, "On Certain Issues Arising in Judicial Practice Regarding the Resolution of Disputes Related to the Protection of Ownership and Other Property Rights";
• Resolution of the Constitutional Court of the Russian Federation No. 48-P of November 26, 2020;
• Ruling of the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation No. 127-KG14-9 of January 27, 2015;
• Ruling of the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation No. 5-KG18-3 of March 20, 2018;
• Ruling of the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation No. 78-KG19-29 of September 17, 2019;
• Ruling of the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation No. 4-KG19-55 of October 22, 2019;
• Ruling of the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation No. 4-KG20-16 of June 2, 2020.