Understanding of Possession to Eliminate Obstruction and Thinking of Judicial Judgment

Author | Hongyan Lawyers Team, Lawyer Chen Ruitan

If the possessor has the right to possess movable or immovable property based on legal relationships such as contracts, he enjoys the rights and interests of real rights such as use and income. Article 462 of the Civil Code stipulates that "if the immovable or movable property in possession is encroached upon, the possessor has the right to request the return of the original; for the act of obstruction of possession, the possessor has the right to request the elimination of the obstruction or the elimination of the danger; if the damage is caused by the encroachment or obstruction, the possessor has the right to request compensation for the damage according to law."

In other words, based on the prior right of legal possession, the possessor has the right to claim the exclusion of nuisance or compensation for the damage to the counterparty who infringes upon his possession, which is the so-called "right to claim possession protection".

I. Exercise subject and object

The subject of the claim for possession protection is the original possessor, that is, the owner of the possession based on the prior legal relationship such as contract, who enjoys the de facto control and management right over the property before the encroachment or obstruction occurs. The opposite person of the claim is the actor who is encroaching or obstructing the possession, that is, the current possessor, whose infringement causes the possessor to lose control of the property.

Can the person without possession exercise the right to claim possession protection?

According to whether the source of rights is legal, possession can be divided into possession without right and possession with right. The possessor obtains possession of the property based on real rights, creditor's rights, inheritance rights, etc., which is possession with right. On the contrary, possession without legal source of rights, such as the lessee continuing to occupy the leased house after the lease contract expires, is possession without right. When the possessor has no legal source of rights, can he claim to the infringer based on the objective fact of possession to exclude the nuisance?

case

Guangzhou Free Trade Zone Dahua International Trading Company and Guangzhou Jinbao Property Management Co., Ltd. Possession and exclusion of nuisance disputes

The court held that the basis of the right to claim possession protection is the fact of possession rather than the determined right, and only the occupier needs to provide evidence to prove the fact of original possession, regardless of whether he has a legitimate source of rights. Dahua Company has provided evidence to prove that it has actually occupied the land involved in the case and leased it out based on the transfer of rights of Furong Company, the land unit specified in the planning license for the construction land of the site involved in the case. Jinbao Company has also confirmed the fact that Dahua Company has occupied the vacant land for many years, and Jinbao Company has fenced and set up gates on the site involved in the case since April 2021, which has indeed hindered Dahua Company's possession of the site involved in the case.

Therefore, Dahua Company sued Jinbao Company to eliminate the obstruction and compensate for the loss, which should be supported.

(2022) Guangdong 01 Minjian 5371

In judicial practice, to determine whether the possessor has the right to exercise the right to claim possession protection, two aspects are mainly investigated: first, the subject of the claim should be the original possessor, and the counterpart of the claim should be the current possessor; second, there must be an act or fact of encroachment, and the result of the encroachment causes the original possessor to lose possession (see Liu Baoguang Civil Case of Civil Application for Retrial Review of Dispute over Property Rights Protection (2021), and whether the original possessor has the right to possess or not, good faith or bad faith, is not within the scope of review.

The original owner can provide evidence to prove the existence of possession, that is, he has the right to exercise the right to claim possession protection.

The purpose of the possession protection system is to protect the stability of the possession state of the occupier. From the perspective of making the best use of the goods, the possession and ownership of the goods will be separated, and the objective fact of possession will be emphasized. Regardless of whether the source of power of the original occupier is legal, once the objective fact of possession is confirmed, it has the effect of publicity to the outside world, and others shall not violate it at will.

II. Exercise requirements

1. The fact that the possessor has objective possession

case

Li Qiliang, Zhao Shengli, etc. rule out nuisance disputes

The court held that: the focus of the dispute in this case is: whether the appellant's claim to exclude nuisance has a factual basis. After trial, it was held that the appellant claimed that the house involved in the case was legally occupied, but the evidence submitted could only prove that it had signed a purchase contract with the Yongtai Commercial Street Construction Headquarters of Xuzhai Town for the house in dispute, and did not submit evidence to prove that it actually occupied the house. In fact, the house is now occupied and used by the appellee Zhao Shengli. Zhao Shengli also submitted the basis for possession in the first instance, so the appellant's claim cannot be established and cannot be supported according to law.

When the appellant did not obtain the real right of the house involved in the case or occupy the house, there was no basis for the appeal to exclude prejudice to the law, and the court of first instance ruled that it was not improper to dismiss his claim.

(2022) Lu 17 Minjian No. 1103

Where a claim for possession protection is filed to exclude the nuisance, the original occupier shall provide evidence to prove that there is a continuous possession of the fact, without proving whether the source of the right is legitimate. The fact of possession requires evidence of true use records. Take real estate as an example, such as real estate delivery records, decoration records, various expenses incurred for living, or continuous rent collection after renting the real estate, so as to presume that the occupier has control and dominance over the property.

If the fact of possession cannot be proved, it cannot be established to claim to exclude the nuisance as the original possessor.

2. Infringement does exist

In addition to providing evidence to prove the objective existence of the possession fact, the original occupier also needs to prove that the obstructive behavior of the current occupier caused it to lose its possession, use, and income. However, if the current occupier can prove that its source of power is legal, such as the ownership of the acquired object or the authorization of the owner, or the possession in good faith, it can claim against the antigen occupier.

case

Li Congling and ******** rule out nuisance dispute for retrial of civil case

******** obtained the right to possess and use the house involved in the case, not the ownership of the house. It was a bona fide possession and use, and did not constitute infringement to Li Congling. Therefore, Li Congling's request for ******** to stop the infringement, remove the obstruction, and immediately vacate the illegally occupied house was not supported.

(2020) E 03 Min Zai No. 42

3. The statute of limitations has not expired

Article 462 stipulates that if the possessor's right to request the return of the original goods is not exercised within one year from the date of the encroachment, the right to request shall be extinguished. The one-year period is the period of exclusion, calculated from the date of the encroachment, and no suspension, interruption or extension of the statute of limitations shall apply. After the expiration of the period, the possessor cannot claim the right to request the return of the original goods.

However, since the act of encroachment has been in a continuous state, the right of the possessor to request exclusion of the nuisance and compensation for the loss has not disappeared.

The right to request for possession protection pays more attention to protecting the fact of possession rather than the ownership of rights. When the object is occupied by others for a long time, a new fact of possession will be formed. Therefore, the law stipulates that the right to request the return of the original object applies during the exclusion period, and urges the original owner to actively call-over within a reasonable period of time.

III. Types of claims

According to Article 462, the claim for possession protection includes the return of the original, the exclusion of the nuisance or the elimination of the effect, and compensation for damages.

1. Return the original.When the possession is occupied by others, if the house is forcibly occupied by others, the original occupier can claim the infringer to return the original. If the object has been damaged or lost, and the return of the original cannot be realized, the equal value compensation can be claimed.

2. Eliminate nuisance or danger.The infringer takes obstructive actions that make it difficult for the occupier to fully control or use the proceeds of the possession, such as placing items on other people's parking spaces, which affects the use of other people's parking spaces. The occupier can claim to eliminate the nuisance. The infringer's actions pose a danger to the occupier's use of the possession, such as building an illegal building on the roof of the shared building, and the adjacent dangerous wall is not repaired. The occupier can claim to eliminate the danger.

However, such claims require nuisance or dangerous behavior to persist. In addition, in disputes over adjacent rights, the owner of the real estate right should give necessary tolerance and convenience to the adjacent right holder for water, drainage, passage, and pipeline laying. If the adjacent right holder affects the owner's possession rights for the above reasons, the owner's claim to exclude nuisance will not be supported.

3. Compensation for damages.In case of damage caused by encroachment or obstruction, the possessor has the right to claim damages according to law. According to the provisions on possession in the book of property rights of the Civil Code, it is generally believed that the damages that the possessor can claim mainly include the following categories: ① The use income lost due to the possession of the property, such as the profit of renting the house to the outside world after being encroached upon by others, the original possessor has the right to claim the return of the house and the fruits (rent); ② If the possession is damaged or lost, the possessor has the right to demand compensation from the infringer for the loss of value of the property; ③ Compensation that the possessor needs to bear to the right holder of the property due to damage to the possession.

In judicial practice, to judge whether the perpetrator of infringement and possession needs to bear the liability for damages, the principle of imputation of fault liability is applied, and the malicious possessor should bear the liability for compensation, and the bona fide possessor can defend accordingly.

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Lawyer Chen Rui < unk >

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Guangdong

is a full-time practicing lawyer, focusing on civil and commercial legal affairs and corporate legal affairs. He is good at handling legal affairs such as equity, contracts, marriage and family affairs. He has served as a corporate legal consultant for many years and has rich theoretical research and practical experience.

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The Hongyan lawyer team is headed by lawyer Liu Hong, and is composed of lawyer Min Na, lawyer Chen Ruitan, lawyer Wang Ting, and lawyer Zhou Gaofeng as the backbone of the business. The team members are handsome and have their own advantages; their business literacy is stable and solid, and they have profound experience in the industry. They abide by professional ethics, focus on business practice, integrate knowledge and practice, and constantly achieve far-reaching goals.

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