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 legal title, 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 prescriptive period required for the subsequent acquisition of ownership.

An adverse possessor can protect their possession by filing a possessory claim in court against the person who has come to possess such property unlawfully (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 prior to the violation of their right;
• 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 held 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 simultaneously meets all the criteria described above 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 faith if the person, upon receiving the property into their possession, did not know and should not have known about the absence of grounds for the emergence of their ownership rights.

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 lacked formal ownership rights to the property.

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

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

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

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

• Adverse possession is considered continuous if it has not been interrupted throughout the entire prescriptive period.

We also note that adverse possession is not interrupted if a person who was temporarily out of possession reclaimed it from someone else's unlawful possession.

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

The Moscow Commercial Court is currently hearing a case in which the C Cases team represents an adverse possessor of a portion of a building that was lost from their ownership following a series of lengthy legal proceedings. Our legal position is based on a combination of criteria for adverse possession, the lack of ownership by the person currently occupying the building, and the results of a judicial construction and technical expert analysis requested by our team.

The complexity of the case stems from the fact that the right of adverse possession must be proven not in a vacuum, but against the backdrop of existing judicial acts that formalized the transfer of the building to another party. Consequently, the team must construct a legal position such that the combined criteria of good faith, openness, and continuity of possession 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. Such cases 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, but have not yet become its legal owners.

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Sources

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