Possession as an institute of civil law in Kosovo

• Author: Kaltrinë Haliti
• Pages: 281-285

ISSN 2410-3918

Acces online at www.iipccl.org

281

IIPCCL Publishing, Tirana-Albania

Academic Journal of Business, Administration, Law and Social Sciences Vol. 2 No. 1

March 2016

Possession as an institute of civil law in Kosovo

PhD Kaltrinë Haliti

Abstract

Social interest and main aim of this paper is to introduce a proper problematic of this institute,

given that after the war in Kosovo, numerous usurpations have occurred. A vast number of

related cases are pending to be solved which at first impression seem to be unimportant.

However, having such cases unsolved which are deliberately categorized as proceedings of

an urgent need by the legislator, frequently resulted with serious consequences as well as

commission of major crimes. Today, the approach that obstruction of possession is a factual

power over an item prevails, which provides a legal contribution pursuant to law and enjoys

civil-legal protection. A crucial legal contribution of possession is its court protection in case

of obstruction by unlawful self-judgment. Possession also enjoys independent protection of a

right over an item. Given that possession itself is not a right whatsoever, herewith we may

conclude that obstruction of possession constitutes infringement of no rights. However, should

the obstruction to possession is committed violently, such possession constitutes the right’s

infringement provided that every violent act is unlawful, and thus it is correctly protected by

an interdict claim.

Keywords: Possession, cases, proceedings, court, legal.

Introduction

The possessor is entitled to legal protection against disturbance or acquisition of

possession.1 Unlike the previous fundamental law on legal property acquisitions, the law

applicable to proprietary rights and other rights in its provisions in a decisive way provides

that disturbance or acquisition of possession shall be unlawful in order to provide

assistance on defence to the possessor (Article 111, Parag. 1, of Law no.03/L-154 on Property

and other Real Rights - LPRR). Thus, if the disturbance or acquisition of possession is

based on the disturbance to the possessor of the property with legal authorization or

decision of the government body, there is no unlawful nature of disturbance to the

possession and the possessor does not enjoy the protection of possession. Possession

acquisition means taking permanent possession of the property from the owner. In this

case the third person acquires the thing fully from the owner and thus makes it impossible

for him/her to exercise the same powers over such thing. Disturbance is any obstruction of

possession, resulting in the acquisition of the thing. In this case, the third person disturbs

the possessor in the use of the possession and thus hinders him in exercising his pre-

emption right. Disturbance can be done in various ways, thus it is difficult to count roughly

all cases of possession obstruction. Possession obstruction can be done in different ways:

by action, lack of action, with factual and verbal actions.

Judicial protection of possession

Protection of possession is provided to all possessors who have the right to property,

even those who do not have such a right (vicious possession) due to the reason that