In everyday life, we are often faced with situations where a neighbour, tenant or even a random person violates our property rights – for example, by preventing access to our property, using part of it without justification or creating a nuisance that limits our peace and comfort. In such cases, as owners, we have the right to defend ourselves through the claim for prevention of unlawful interference or “Actio negatoria”, provided for in Article 109 of the Ownership Act.
What is an Actio negatoria?
An Actio negatoria is a legal instrument by which an owner (or co-owner) or holder of a limited property right (right of use, right of construction, etc.) of real property may request the court to terminate any unlawful act that infringes or restricts his right to use the property. The important point here is that the action also applies when another’s actions interfere with its normal use. For example, if a neighbour has built a fence that blocks access to your property, has placed a structure that casts a shadow on your yard, is constantly dumping trash on the property, etc.
What can we ask for with an Actio negatoria?
With an Actio negatoria, you can ask the court to order the trespasser to stop any action that creates an obstacle to the proper use of your property, or to restore it to the way it was before the wrongful action was committed. This could mean the removal of an illegally erected building, stopping noise or vibrations, prevent smoke or odours from entering your property, and other similar situations.
What does the practice of the Supreme Court of Cassation suggest?
It is important to know that when granting a claim under Article 109 of the Ownership Act, the court may not order the defendant (the alleged infringer) to carry out actions the performance of which affects the rights of third parties not involved in the dispute. The only thing that the court can order is an injunction against the defendant, which would only affect his legal sphere (to refrain from certain conduct, to remove certain things from your property, etc.).
Furthermore, the court is not completely bound by the requests formulated by the plaintiff – it is possible to order the defendant to cease and desist from performing or to perform only those acts which are sufficient to adequately protect the plaintiff’s property.
If you need legal aid for such cases, do not hesitate to contact us.