The special regime that allows unlawful encroachments on the possession of immovable property to be removed by administrative decision, without recourse to the courts, is Act No. 3091 on the Prevention of Encroachments on the Possession of Immovable Property. Acting under this Act, district governorships and provincial governorships may, following the examination they conduct, order that the physical encroachment on the immovable be removed and that the occupation be brought to an end.
Where a boundary has been shifted, enjoyment of the immovable has been obstructed, the property has been unlawfully occupied, co-owners are in dispute over actual use, or an encroachment is connected with a claim for compensation for unjust occupation, this Act functions in practice as a fast-moving protective instrument.
Below we examine in detail the conditions under which the Act applies, how an application is made, the stages of the examination conducted by the civil administrative authority, how the decisions given are put into effect, and which judicial remedies are open against those decisions.
What Does Act No. 3091 Provide?
The Act in question is a special regime designed to remove unlawful physical encroachments on immovable property swiftly and by administrative means. An application may be made to the district governorship or the provincial governorship for the removal of an unlawful interference with possession.
The principal aim of the regime is to protect actual control over the immovable and to maintain public order. The objective is to bring the interference to an end within a short time, through administrative authorities, without waiting for the outcome of proceedings that may take a long time.
That said, this mechanism serves only to prevent physical encroachments; conclusively determining who owns the property, or resolving disputes over rights in rem on the merits, falls outside the scope of the Act.
The Scope of Administrative Protection
Recourse to the administrative application procedure is available under the Act in cases such as forcible entry onto the immovable, breach of its boundaries, physical encroachment, obstruction of the enjoyment of the immovable, and unlawful occupation of the property.
Because the regime takes actual control over the immovable as its basis, the applicant is not required to hold the capacity of owner. Subject to certain conditions, heirs, co-owners, public institutions and possessors may also apply.
Relationship with Judicial Remedies
The administrative process conducted within the framework of this Act is a self-standing protective route, independent of the possessory and in rem actions that may be brought before the ordinary courts.
The Concepts of Occupation and Interference
Unlawful occupation is the physical seizure or use of an immovable without the consent of its owner or possessor and without reliance on any legal authority. What is decisive for the application of the Act is that the encroachment is physical in nature and that it is unlawful.
Forms of Physical Encroachment
Physical encroachment covers any form of physical interference that directly affects the right of use or possession over the immovable. Conduct assessed under this heading in practice includes occupying the area of use, placing an obstacle or structure on the immovable, blocking a road, breaching a boundary, and entering the immovable. Interferences of this kind can be established by an on-site investigation carried out by the administrative authorities.
Obstruction of the Enjoyment of the Immovable
Even where there has been no direct encroachment on the immovable, rendering its enjoyment impossible in practice may also fall within the scope of the Act. Closing off common areas of use, preventing agricultural activity from being carried on, blocking the road providing access, and barring entry to the immovable may be given as examples of conduct of this nature.
The Distinction Between Public Property and Private Ownership
The Act may be applied not only to immovables subject to private ownership but also to certain public immovables.
The administrative interference mechanism may likewise be operated in respect of land owned by public institutions, winter and summer pastures, common pasture areas, and immovables under the dominion and disposition of the State.
Disputes Over Use in Co-ownership and Joint Ownership
In immovables held in co-ownership or joint ownership, disagreements over actual use frequently arise between the co-owners. Closing off common areas, obstructing the enjoyment of the other co-owners, and one co-owner using the immovable in its entirety are the principal forms of such disputes.
In such cases an application may be made under the Act depending on the circumstances of the case. In disputes between co-owners, however, the administration takes as its basis not the ownership relationship but the state of actual possession of the immovable.
Conditions of Application
The administration may order the prevention of the interference only if the conditions laid down in the Act are met cumulatively. Where one of these conditions is absent, the application may be rejected.
The Existence of a Physical Encroachment on the Immovable
Before anything else, the operation of the Act requires the existence of a physical interference directed at the immovable. Placing an obstacle or structure on the immovable, breaching a boundary, obstructing use, and occupying the immovable are counted as interferences of this kind. Abstract assertions of right, by contrast, are not regarded as sufficient in themselves for the Act to apply.
The Interference Must Be Unlawful
The physical encroachment must also be contrary to law. Where the interference actually infringes possession, does not rest on any court decision or legal authority, and there is no consent from the owner or possessor, the condition of unlawfulness is regarded as satisfied.
The Applicant Must Be a Possessor or Rightholder
In order to apply, the person must have a relationship of possession or entitlement over the immovable that merits protection. Public institutions, heirs, co-owners, actual possessors and owners may have recourse to this route under certain conditions. In making its assessment, the administration has particular regard to the state of actual use of and control over the immovable.
The Time Limit
Applications under the Act are subject to a time limit. Accordingly, the application must be made within sixty days of the date on which the interference became known and, in any event, within one year of the date on which the interference occurred. If these periods are missed, it may not be possible to make use of the administrative application route.
The Immovable Must Fall Within the Scope of the Act
The land to which the interference relates must have the character of an immovable falling within the scope of the Act. Immovables belonging to public institutions, winter and summer pastures and common pastures, land under the dominion and disposition of the State, and immovables subject to private ownership may be assessed within this scope under certain conditions.
No Pending Action Before the Ordinary Courts
For the administrative interference to be set in motion, there must be no action for the prevention of interference pending before the ordinary courts concerning the same immovable and the same encroachment. Where an action is pending between the parties on the right of use, the prevention of interference, possession or ownership, it is as a rule not possible for the administration to take action under the Act.
The reason for this is plain: the Act is not a form of proceedings that resolves disputes over rights in rem on the merits, but a special protective instrument enabling physical interferences with possession to be removed swiftly by administrative means.
Who May Apply?
In order to seek the prevention of an unlawful interference, the applicant must have a relationship of possession or entitlement over the immovable that merits protection.
Owners
Persons registered as owners of the immovable in the land registry may apply under the Act for the removal of a physical encroachment or unlawful occupation affecting the property.
Where the immovable is used without permission, is occupied, or its use is obstructed, administrative protection may be sought on the basis of the capacity of owner.
Possessors
Since the Act protects possession as well as ownership, persons exercising actual control over the immovable also have the right to apply, subject to certain conditions.
Possessors who have exercised control over the immovable for a long period, those who actually use it, and tenants may request the prevention of the interference.
Co-owners
In immovables held in co-ownership or joint ownership, co-owners may also apply where the conditions are met.
The situation most frequently encountered in practice is that one co-owner closes off the common areas, physically occupies the immovable in its entirety, or wholly extinguishes the other co-owners’ right of use. In applications of this kind the administration assesses the state of actual use and possession.
Public Institutions
In respect of land under the dominion and disposition of the State and immovables owned by public institutions, the relevant administrations may likewise apply under the Act.
This route is frequently used in cases of occupation affecting areas set aside for public service, parks and roads, and winter pastures, summer pastures and common pastures.
The Application Process
A request for the prevention of an unlawful interference begins with an application to the administrative authorities. Which authority has competence is determined by reference to the legal status of the immovable, the nature of the interference and the place where the immovable is situated.
Authorities Receiving the Application
Applications are made to the civil administrative authority of the place where the immovable is situated. Accordingly, the request may be submitted to the provincial governorship or to the district governorship. Which authority is competent is determined by reference to the nature of the immovable and the place where it is situated.
The Administrative Examination Stage
Upon the application, an examination process is initiated by the competent civil administrative authority. The purpose at this stage is to establish the applicant’s state of possession, whether the encroachment is unlawful in nature, and whether there is a physical interference directed at the immovable.
The examination conducted by the administration is directed not at resolving the substance of an ownership dispute, but at establishing the factual situation of the immovable and the existence of an interference.
Preliminary Examination Steps
Following the application, compliance with procedure is examined first. In this framework, it is examined whether the dispute is pending before the ordinary courts, what the applicant’s position is as regards possession or entitlement, whether the immovable falls within the scope of the Act, and whether the application was made within time. Where the procedural conditions are not met, the application may be rejected.
On-site Examination and Investigation
During the examination process an on-site investigation of the immovable is usually carried out. This investigation establishes the extent of the occupation, the manner of use, the state of the boundaries, the existence of a physical interference and the current state of use of the immovable. Where considered necessary, photographs, sketch plans and technical findings are also added to the file.
Investigation by Law Enforcement
Law enforcement units may also take part in the process when the Act is applied. The police or the gendarmerie may investigate the nature of the interference, the statements of the parties, the relationship of use over the immovable and the factual circumstances of the incident. The law enforcement reports drawn up carry significant evidential weight at the decision stage.
Assessment of Witnesses and Evidence
During the examination, the evidence put forward by the parties and witness accounts are also taken into account. Witness statements may be decisive in practice on the points of who has been using the immovable, on what date the interference occurred, with whom actual control lies, and how long the use has continued. Alongside these, photographs, tax records, lease agreements, land registry records and other documents are also taken into consideration.
The Administration’s Decision Stage
Once the investigation and examination are complete, the civil administrative authority gives a decision on the application. The administration may reject the application, or may order the eviction of the immovable or the removal of the interference. The decision given has the character of an administrative act and, where its enforcement is required, this is secured through law enforcement. An action for annulment may also be brought against such decisions before the administrative courts.
Decisions on the Prevention of Interference
If, as a result of its examination, the civil administrative authority establishes that there is an interference directed at the immovable and that it is unlawful in nature, it may give an administrative decision for the prevention of the interference.
These decisions are administrative acts intended to protect actual control over the immovable and are enforced, where necessary, through the law enforcement forces.
Decision for the Removal of the Interference
If the existence of an unlawful encroachment is established at the end of the examination, the removal of the interference may be ordered.
Eviction Measures
Where it is established that the immovable has been unlawfully occupied, the removal of the occupier from the property may be ordered. Eviction finds its field of application in particular where the immovable has been occupied or used without permission.
Removal of Physical Obstacles
Measures aimed at removing physical obstacles on the immovable may also be taken with a view to putting an end to the unlawful interference. The removal of elements that obstruct the use of the immovable, of barriers blocking entry and of structures of a temporary nature is assessed within this scope.
Enforcement of the Decision by Law Enforcement
Where the decisions given need to be put into effect, the law enforcement forces step in. Delivery of the immovable to the rightholder, removal of the interference and eviction measures may be carried out through gendarmerie or police units. Law enforcement is also responsible for maintaining public order during enforcement.
Remedies Available Against the Decisions
Since decisions given by the provincial or district governorship have the character of administrative acts, they are open to judicial review. Accordingly, an action may be brought before the administrative courts against acts rejecting the application or ordering the prevention of the interference.
The administrative courts are able to review in particular whether the administrative examination was conducted in accordance with the law, whether an interference genuinely existed, the relationship of possession, and the state of actual use of the immovable.
Action for Annulment
An action for annulment may be brought before the administrative courts against decisions given under the Act. In such actions the lawfulness of the administrative act is examined in terms of its purpose, subject matter, grounds, form and competence.
The arguments most frequently advanced in practice are that the immovable has already been made the subject of an action before the ordinary courts, that the application was wrongly assessed as regards the time limit, and that there is no physical interference.
Request for a Stay of Execution
If enforcement of the decision would cause damage that is difficult or impossible to make good, a stay of execution may be requested together with the action for annulment. This request carries particular importance in practice where use of the immovable is to be brought to an end, a physical interference is to be removed through law enforcement, or eviction measures are to be carried out.
For the court to stay execution, the act must be manifestly unlawful and there must at the same time be a likelihood that damage difficult to make good would arise if it were enforced.
The Court with Subject-Matter and Territorial Jurisdiction
In actions brought against administrative acts issued under the Act, subject-matter jurisdiction lies with the Administrative Court.
As regards territorial jurisdiction, the action is heard by the administrative court of the place where the district or provincial governorship that issued the act is situated.
Independent Legal Assessment
Act No. 3091 may look attractive because of its speed, but its scope is narrow and, if chosen wrongly, it can lead to the loss of rights. The administration examines only the factual situation; it does not enter into the question of ownership. For that reason, where the dispute is at bottom a dispute over a right in rem, the administrative application will provide at most temporary relief, and the lasting solution will lie with the ordinary courts.
The time limit is the point most frequently overlooked in practice. The sixty-day period running from knowledge and the one-year period running from the date of the interference must be assessed together, and in the case of continuing interferences the starting point must be identified with care.
In a concrete case, the following matters should be addressed in advance:
- Documenting the date on which the interference became known, so that the time limits can be calculated
- Checking whether an action is pending before the ordinary courts in respect of the same immovable and the same interference
- Including in the application file, from the outset, records demonstrating the continuity of possession
- Establishing the state of the boundaries and of use by means of photographs and sketch plans before the on-site examination is carried out
- Planning in advance a timetable for an action for annulment and a stay of execution, in case the decision goes against the applicant
- In disputes between co-owners, comparing whether the administrative route or the routes of dissolution of co-ownership and prevention of interference is the more suitable
Independent Legal advises on the conduct of the administrative application process in cases of interference with the possession of immovable property and on the pursuit of administrative-law remedies against decisions of the civil administrative authority.