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§ 40. Arbitrary action and arbitrary possession
- (1)
- Possession is protected by law against arbitrary action.
- (2)
- Arbitrary action is the unlawful violation of possession of a thing or the unlawful deprivation of possession without the consent of the possessor. Possession obtained in this manner is arbitrary.
- (3)
- Violation of possession is an impediment to the exercise of actual control by a possessor over a thing or an attempt or threat to deprive the possessor of the thing if there is reason to fear execution thereof.
- (4)
- A successor to possession and any other legal successor is also liable for the consequences of arbitrary possession if upon acquiring possession the latter knew of the arbitrariness of the possession of the predecessor.
§ 41. Self-help
- (1)
- A possessor may protect the possessor's possession by force against arbitrary action without exceeding the limits of self-defence.
- (2)
- If a possessor is deprived of a movable arbitrarily in secret or by force, the possessor has the right to immediately deprive the user of arbitrary action who is apprehended in the act or pursued of the movable.
- (3)
- If a possessor is deprived of possession of an immovable arbitrarily in secret or by force, the possessor has the right to banish the user of arbitrary action from the immovable and to regain control over the immovable.
- (4)
- A person specified in subsection 33 (3) may also use the right of a possessor to self-help provided for in this section.
§ 42. Right to search
- (1)
- If a movable ceases to be under the control of a possessor and is on an immovable in the possession of another person, the possessor of the immovable is required to permit a search for and removal of the thing unless someone has taken possession of the thing in the interim.
- (2)
- The possessor of an immovable has the right to demand compensation for any damage arising from a search for and removal of a thing. If there is reason to presume that damage will arise, then until receipt of security the possessor of the immovable has the right to refuse to grant permission to search for and remove the thing. Refusal is not permitted if delay is hazardous.
§ 43. Judicial protection of possession
If possession is violated arbitrarily (subsection 40 (3)), or possession is taken away arbitrarily, a possessor has the right to request judicial protection of possession.
§ 44. Claim arising from violation of possession
- (1)
- Upon violation of possession, a possessor has the right to demand elimination of the violation, prevention of a subsequent violation and compensation for damage.
- (2)
- A claim shall not be satisfied if possession of the claimant is arbitrary with respect to the violator or a predecessor of the violator and is acquired within one year before the violation.
§ 45. Claim arising from deprivation of possession
- (1)
- Upon deprivation of possession, the possessor has the right to demand restoration of possession and compensation for damage from the person who is the arbitrary possessor with respect to the claimant.
- (2)
- A claim shall not be satisfied if possession of the claimant is arbitrary with respect to the depriver or a predecessor of the depriver and is acquired within one year before the deprivation of possession.
§ 46. Objections of possessor
A defendant may contest the claims specified in sections 44 and 45 only if the defendant proves that the violation or deprivation of possession was not arbitrary and that the defendant had the right to violate the possession or to possess the thing.
§ 47. Rights of indirect possessor
- (1)
- A claim specified in sections 44 and 45 may also be submitted by an indirect possessor.
- (2)
- If possession is taken away, an indirect possessor may demand restoration of possession to the direct possessor. If the direct possessor cannot receive or does not want restoration of possession, the indirect possessor may demand transfer of possession to themself.
- (3)
- An indirect possessor has the right to search (section 42) under the conditions specified in subsection (2) of this section.
§ 48. Limitation period for action for protection of possession
The limitation period for an action for protection of possession (sections 44 and 45) is one year from the violation or deprivation of possession.
§ 49. Protection of partial possession
A person who possesses a physical share of a thing may protect possession of the share pursuant to the procedure provided for in sections 40-48.
§ 50. Protection of common possession
- (1)
- If several persons possess a thing jointly (common possession), each co-possessor or the co-possessors jointly may protect possession pursuant to the procedure provided for in sections 40-48.
- (2)
- The provisions for protection of possession do not apply in a dispute between co-possessors over the extent of the right of use of possession.
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