What are interim measures for the protection of possession?
Interim measures for the protection of possession (ασφαλιστικά μέτρα νομής) are a specific form of interim measures granted by the court for the protection of a right of possession (νομή) or detention (κατοχή) over movable or immovable property, provided that the case is one of urgency or that an imminent danger must be averted.
What do the terms “possession” and “detention” mean?
Possession (νομή) is the physical control that a person exercises over a thing, behaving as if he were its owner — for example, by leasing the thing to another, cultivating a field, etc. Detention (κατοχή) is the physical control that a person has over a thing while acknowledging that it does not belong to him — for example, the lessee of an apartment who recognises that ownership belongs to the lessor. Disputes therefore frequently arise concerning the possession and detention of things, and the interference with possession from which the legislator wishes to protect us is manifested either by dispossession or by disturbance — that is, the creation of obstacles to the possessor in the free exercise of his right.
What are examples of interference with or disturbance of possession?
Common cases of interference with possession are the dumping of debris on one’s plot of land by a neighbour, the moving of a fence by a neighbour so that it crosses the boundaries of his plot and reaches ours, etc. Very common are the cases in which banks file applications for interim measures for the protection of possession against persons who have borrowed from them for the purchase of machinery for their business or vehicles and fail to pay their instalments, in cases where the loan is granted with retention of title by the bank.
How can I protect my right of possession?
In order to protect his right of possession, a person may file a lawsuit (a possessory action) before the competent court. However, until the lawsuit is filed or until it is heard by the court, the quickest way to obtain protection is through the special procedure of interim measures for the protection of possession. The “key” to whether or not the application for interim measures for the protection of possession will be granted is the existence of urgency, while it suffices for the applicant to show prima facie that he is the lawful owner or possessor of the thing — a matter which will in any event be determined definitively in the main proceedings on the lawsuit. Thus, for example, a bank that has transferred possession of a vehicle subject to a clause of retention of title until repayment of the loan granted for its acquisition may invoke the fact that the opposing party is making improper use of and failing properly to maintain the vehicle, and on that basis seek the return of the vehicle.
Which court has jurisdiction to hear interim measures for the protection of possession?
The court with subject-matter jurisdiction to hear interim measures for the protection of possession is the Magistrate’s Court (Ειρηνοδικείο). If the disputed thing is immovable property, the competent court is the Magistrate’s Court of the district in which the property is located, while if it concerns a movable thing the competent court is the Magistrate’s Court of the district of the respondent’s residence. In practice, therefore, the application for interim measures is filed at the Registry of the Magistrate’s Court and the date of the hearing is set. It is very important to bear in mind that, in order to file an application for interim measures for the protection of possession, we must either have already filed a lawsuit for the protection of our right or file it within the deadline set by the judge who decided on the application for interim measures. The application for interim measures must include the grounds and the factual circumstances on the basis of which it appears prima facie that the applicant has the right he asserts over the thing and for whose protection he files the application for interim measures (e.g. because he is the owner), the grounds establishing the existence of urgency, the factual circumstances constituting the dispossession or disturbance of detention of the thing, and the measure proposed by the applicant for his protection — without, however, his proposal binding the court.
May a temporary restraining order be sought in interim measures for the protection of possession?
The law gives the judge the power, where he considers that there is urgent need and serious cause, to issue a temporary restraining order regarding measures that must be taken immediately upon the filing of the application for interim measures, in order to protect the applicant from the opposing party in the exercise of his right of possession or detention over the disputed thing. The temporary restraining order is heard within two days of the filing of the application and is in force until the hearing on the application for interim measures. The party against whom the application for interim measures for the protection of possession is directed may, in his defence, plead that the requirement of urgency is not met, that the applicant was the one who first unlawfully interfered with his possession, that one year has elapsed since the act of disturbance of possession and the limitation period has expired, etc., and may also file his own cross-application for interim measures for the protection of possession. The judgment specifies the interim measure and the right whose protection it is intended to secure, or the situation that must be regulated.
What interim measures for the protection of possession may the court order?
The judge may, by his judgment, order the interim measure he considers appropriate for the specific case, without being bound by the proposals of the applicant. In particular, he may order that acts of possession or detention be permitted or prohibited, or decide that one of the opposing parties shall have possession or detention. Because the application for interim measures is filed and operates in parallel with the lawsuit, and the judgment on the interim measures is in force until a court ruling is issued under the ordinary procedure, the judgment of the Magistrate’s Court does not order measures that produce irrevocable results, such as, for example, the demolition of a building. It may, however, prohibit the continuation of any building works and, if there is a danger because the building will remain unfinished, it may order that the necessary building works be carried out so as to avert any danger. The court therefore has discretion to propose a combination of actions and measures that it considers appropriate in the case at hand.
If the interim measures for the protection of possession are dismissed, how can I respond?
It must be borne in mind that judgments on interim measures for the protection of possession are the only judgments on interim measures that can be challenged by appeal. We must also note that the application for interim measures for the protection of possession does not interrupt the limitation period.
- See also the article Interim Measures
- See also the article Revocation of Judgment on Interim Measures
- See also the article Interim Measures for Real Estate
- See also the article Interim Measures in Family Disputes
- See also the article Interim Measures – Harassment – Fake Instagram/Facebook Accounts
- See also the article Interim Measures against Facebook/Twitter/Instagram
- See also the article on Interim Measures – Relocation from the Family Home
- See also the article on Interim Measures – Joint Custody of a Child
- See also the article on Interim Measures – Custody and Child Abduction
- See also the article on Interim Measures – Change of City of Minor Children
FREQUENTLY ASKED QUESTIONS ON INTERIM MEASURES FOR THE PROTECTION OF POSSESSION
1. What do I face when my possession is interfered with?
When someone dispossesses the possessor of the thing or disturbs the free exercise of possession, the possessor faces an immediate and continuing interference that requires a swift response. Common examples include the dumping of debris on a plot, the moving of a fence by a neighbour, the occupation of part of the property, the obstruction of access or the unauthorised removal of a movable thing.
In such cases, waiting for the ordinary trial may cause irreparable damage, which is why the law provides for the expedited procedure of interim measures for the protection of possession, so that the previous state of affairs can be restored immediately until a final judgment is issued on the possessory action.
2. What can I do to protect my possession?
The possessor may file an application for interim measures for the protection of possession, requesting an order for the cessation of the interference, the removal of obstacles or the restoration of possession. In parallel, a temporary restraining order may be sought, which is heard within two days of filing and remains in force until the hearing on the main application, providing immediate protection in cases of urgency.
It is essential that the corresponding possessory action also be filed, either before the application or within the deadline set by the judge; otherwise the interim measures cease to have effect.
3. How long does the procedure take?
The application for interim measures for the protection of possession is generally scheduled within a few weeks to two months, depending on the court’s caseload. The temporary restraining order, when sought, is examined within two days and provides immediate cover. The judgment on the application is usually issued within a few months after the hearing.
It must be borne in mind that the claim for the protection of possession is subject to a one-year limitation period from the interference, and that the application for interim measures does not interrupt the limitation period; for that reason, the prompt filing of the lawsuit is also crucial.
4. What documents and evidence do I need?
The required documents include title deeds or evidence supporting prima facie possession (deeds, lease agreements, utility bills, E9 declarations, topographical diagrams), dated photographs of the interference, video, eyewitnesses, any police reports, correspondence with the opposing party, and any other material substantiating urgency.
In disputes over fencing or boundaries, a technical report by a surveyor engineer is particularly useful. The more thoroughly documented the file, the greater the likelihood that the application will be granted and that a temporary restraining order will be issued from the very first day.
5. What are my chances of success?
In interim measures for the protection of possession, only a prima facie showing of the right is required, not full proof, which works in favour of the applicant when the factual circumstances are clear. A decisive factor is the existence of urgency and the absence of any prior unlawful interference by the applicant with the opposing party’s possession.
It is important to note that the judgment on interim measures for the protection of possession, in contrast to other judgments on interim measures, may be challenged by appeal. Thus, even if the decision at first instance is unfavourable, the possessor has a second chance to obtain a favourable outcome.
6. What is the role of the lawyer in this procedure?
The lawyer assesses whether the requirements are met (possession, interference, urgency), gathers evidence, drafts the application with the necessary handling and seeks an appropriate temporary restraining order. He represents the client at the hearing of the temporary restraining order and the main application, examines witnesses and rebuts any cross-application by the opposing party or pleas of expiry of the one-year limitation period.
Our firm has experience in disputes concerning possession and detention of immovable property, in matters of boundaries and fencing, as well as in cases concerning the return of vehicles or machinery subject to retention of title.