Legal regime of possession and its protection

Abstract

The subject of research in this paper is the legal regulation and protection of possession as one of the main institutes in Macedonian property law. As the paper will demonstrate, possession is regulated by general Law on Ownership and Other Real Rights as a factual power over things (movable or immovable) distinct from the property rights, which represent different types of legal power over things. The objective of the paper is to emphasize the importance of possession in Macedonian property law and the need for its protection. In order to demonstrate the importance of possession, the paper analyzes the various types of possession regulated in the Macedonian property law and how they affect property law relations. Types of possession that are analyzed in this paper are: indirect and direct (depending on the spatial relation), original or transferred (depending on the origins of the possession), individual, collective or joint possession (depending on whether the factual authority is exercised by one or more persons), legal and illegal (depending on existence or non-existence of a legal basis), peaceful or flawed (depending on the method of taking possession), conscientious or unconscientious (dependent whether the possessor knew or did not know that there were defects in the act of taking possession). By demonstrating the importance of possession in property relations, the paper underlines the value of an effective and efficient system for protection of possession. As the paper will demonstrate, the system for protection of possession consists of two forms of protection – institutional (judicial) protection and self – help, the scope of which is subject of detail analysis. In addition, the paper also contains comparative look on the legal regulation of possession in the legal systems of the EU member states.