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Property Protection: Questionnaire and instructions

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QUESTIONNAIRE
THE PROTECTION OF IMMOVABLE PROPERTY IN EUROPE

Editors
Sonia Martín Santisteban. University of Cantabria
Peter Sparkes. University of Southampton


(BETTER RIGHT TO POSSESS)


Owner sues intruder

1. Michael who lives in a large city bought a cottage in the countryside which he visits every other weekend in summer. Last autumn when he left for the last time he left a side door unlocked. A neighbour called Michael to tell him that John has moved in and has been living in the cottage for the past month

a) What action in court is available to Michael?
b) Is any other course of action open to Michael?
c) Would it make a difference if the identity of the intruder was unknown?


Note: The purpose of this question is to discover the judicial and administrative remedies available against an intruder. For some respondents it might make a difference if the lock had been forced. In this case, identify it.
We changed the hypo and introduced a new question to distinguish the substantive law from the procedural law issue. We also changed the note to delete the self help remedies from this question. Selp help remedies are addressed in Q.4.



Owner sues licencee

2. Elena owns a flat that Kare was allowed to use, free of charge, until Elena comes back from Europe. When Elena comes back from her travel and tries to recover possession of her flat, Kare refuses to leave.

What can Elena do to recover the possession of her flat?


Note: The purpose of this question is to consider how an owner recovers possession when someone allowed a licence to occupy property refuses to vacate when requested. Kare is not alleging any ownership right but simply refuses to leave.
In some countries the fact that the parties had stipulated a determinable term for the licence may be important. In this case, identify it.



Owner sues former tenant

3. Elisabeth decided two years ago to rent out the shop and the flat over it in which she had previously lived and run a grocery store for many years and accordingly agreed a lease with Barbara. Barbara stopped paying the rent one year ago and now that the lease is over, refuses to leave the premises.

What could Elisabeth have done to defend her ownership while the lease was in effect and what could she do now that it is at an end?


Note: The purpose of this question is to know how an owner can recover occupation
1) from a tenant who refuses to pay and
2) from a tenant at the end of the lease.
We added a “flat” to the prior version so that not only commercial but also residential property is in issue. However, remember that the target is repossession and not the security issue.



Possessor sues owner for exercising self-help

4. Nicolas is the registered owner of a flat he inherited from his grandmother in 1990 and where he lived until one year ago. Steven has been living there for the last few months without Nicolas’ consent and has been making alterations to the kitchen. Nicolas is informed about this by a neighbour. He watches to be sure that Steven is not at home, enters the house using his key and changes the entrance lock without any notice to Steven.

Steven sues Nicolas. Will he be able to recover occupation of the flat?


Note: The purpose of the question is to identify whether the possessor has any remedy after the owner has evicted him. You should not only refer to judicial but also to administrative and self help remedies.
We changed the question to be more factual



Restitution

5. William purchased a farm from Paul. After a few months, William resold the farm to Richard who planted fruits trees and erected greenhouses. William’s title is declared invalid and Richard is forced to return the farm to Paul.

a) Richard wants compensation for the expenses he incurred on the farm. Will he be successful? Who should he sue?
b) Is Richard liable to account for any of the fruits?


Note: In this question it is assumed that an unregistered title has been invalidated and the question is what personal obligations arise in unjust enrichment or otherwise





(RIVAL OWNERSHIPS)


Apparent owner in possession against person who asserts rival ownership

6. James purchased a piece of land from Mario a few years ago where he has been growing vegetables. Peter considers he inherited the land from his father who died 2 years ago and sues James.

a) What can James do to defend his ownership and what is he required to prove to be successful?
b) Would your answer differ if Peter had been registered with the Land Registry?
c) In the event James’ right was not acknowledged by the court, can James get any compensation from Mario, Peter or someone else?


Note: The purpose of the question is to know how your legal system resolves competing claims over ownership and what evidence is needed to be successful. We are also interested in the role played by the Land Registry, if any, in this matter.



Owner sues adverse possessor

7. Antonio found an unoccupied cottage 50 years ago and rebuilt it over four or five years moving in as rooms were finished. He then turned to the garden, reclaiming it from the wilderness over several years, fencing all round and establishing a large fruit and vegetable garden. He cut the grass on a rough paddock once a year and about ten years ago fenced this and began to graze it. Throughout this time he behaved as owner though he does not have documents proving his right. Maria asserts she is the owner and presents a claim.


Will Maria be successful?


Note: The purpose of the question is to know the regime for adverse possession, in your legal system, and the title holder remedies against a person who is possessing ad usucapionem. You should also refer to the role played by the Land Register, if any, in this matter.





(NEIGHBOURS)


Construction on someone else property

8. James eyes up a plot on the edge of the village where he lives. He starts to build a house on a plot of land alleging he has the right to do so but knowing that Anne claims that the land belongs to her

a) What can Anne do to force James to stop the construction and demolish the part of it already built?
b) What can Anne do once the house has been built?
c) Would your answer differ if only one part of the house had been built on Anne’s plot?


Note: We modified the hypo to make clear that James and Anne are not neighbours. The purpose of the question is to know what remedies can be used, in your legal system, when someone builds on your property, without your consent.
In question c) you should specify whether it makes any difference that only one part of the construction encroaches on your property. In some countries the answer might vary significantly if James and Anne were neighbours. In this case, you may identify it.



Controversy over the property boundaries

9. Emma owns a piece of land adjoining another plot owned by Juan. According to Emma, Juan has been working his plot so as to encroach upon a part of Emma’s. Juan denies this. He considers that he owns the whole surface area that he has being working. Emma decides to fence her piece of land including the area in dispute.

a) Juan sues Emma. Will he be successful? What can Emma do?
b) Would your answer differ if any of the properties were registered in the Land Registry?
c) And what if Emma was not the owner of the land but only the person with the right to use it?
d) Would your answer be different if Juan was not working the land?


Note: The purpose of the question is to know how your legal system determines the physical extent of land which is owned or possessed. You should also refer to the role played by the Land Register, the Cadaster or any other institution, in this matter.



Neighbouring constructions that don’t respect the prescribed distance

10. Helda owns a piece of land adjoining another plot owned by Frank. Frank extended his house with an annex built right up to the boundary of Helda’s property. For a while, Helda didn’t complain but now she wants Frank to demolish the annex.

What are Helda’s remedies against Frank? Can Frank be compelled to demolish the annex?


Note: The purpose of the question is to know what remedies can be used, in your legal system, when your neighbour starts a construction very close to yours and does not respect the prescribed distance between the edge of his property and the beginning of the construction (in this case, the annex). You should include any detail relevant in your law, such as the year of construction, whether there is an urban plan or not, etc.). The problem of encroaching onto someone else’s property is addressed under Q.8c).



Nuisance

11. Elsa owns a house she rented to Maria who has 2 dogs. Maria’s dogs bark very often and disturb Helen who lives in the neighbouring house and sleeps during the day because works at night. Helen complained to Maria but this did not solve the problem.

a) What can Helen do?
b) Does it make any difference whether Maria and Helen live in a condominium?


Note: This question aims to identify the legal protection against problems caused by noisy neighbours or other intrusions which are not physical in character



July 2010








Created by: admin. Last Modification: Tuesday 13 of July, 2010 09:44:52 CEST by martin.