SСC RF: practice review in relation to violations not connected with dispossession

The Supreme Commercial Court of the Russian Federation (SСC RF) has approved Information Letter No. 153 of 15 January 2013 including recommendations on protecting owners’ rights against violations not connected with dispossession (actio negatoria/action to deny).

1.     It is reconfirmed that the choice of rights in rem protection, judicial classification of disputed relations and, ultimately, resolution of a rights in rem conflict depend on who actually possesses the disputed property. For instance, an owner in possession of the property protects its rights by filing an actio negatoria (action to deny) (article 304 of the RF Civil Code), whereas an owner that has lost possession of the property does so by filing a revindication suit (article 301 of the RF Civil Code). Moreover, if the right of the possessor is registered in the Realty Register, the relevant method is to file a suit for the right to be negated.

2.     If it is the actions of a tenant that infringe on the rights of another person and, after the lease is terminated and the property is returned to the owner, the given infringement remains in place, it is the owner of the property that is the respondent under a suit for elimination of a violation of a right not connected with dispossession. At the same time, the owner is not deprived of the opportunity to claim recovery from the former tenant of any costs incurred in eliminating the violation.

3.     The impossibility of carrying out construction on the scale desired by the claimant does not constitute grounds for satisfying an actio negatoria against the owner of an adjacent land plot if the respondent has developed its own plot in compliance with the building and town-planning rules and regulations. An example is given of neighbouring land plots of an individual entrepreneur and of a company. The company develops design documentation and obtains a permit to build a retail centre. The entrepreneur states his intention to renovate a building located on his own land plot but his reconstruction rights are violated by erection of the retail centre by the company. In particular, the presence of an adjacent building with large windows precludes development of his entire land plot, since the neighbour’s windows must have daylight access. Proceeding from these premises, the SCC RF upheld the legality of the court rulings dismissing the entrepreneur’s claims for construction of the retail centre to be halted.

4.     The possibility is confirmed of filing so-called preventive suits: recognition that the claimant’s rights have been violated does not require the relevant event to have already occurred (in the given case: collapse of the building). It suffices to prove the threat of right infringement. In other words, ownership rights may be violated when another person performs actions on its own land plot that constitute a real threat of property located on an adjacent land plot collapsing.