The legal protection of the right of ownership is extensive in Greek law and has got a wide interpretation due to the fact that the Greek Constitution includes a specific provision on the statutory protection of ownership.
The right of ownership gives to its holder the power to deal with his property as he may desire, excluding at the same time every third party actions on it. Any action on the immovable property, unless it is strictly forbidden by law, is included in the notion of ownership. Moreover, in Greek law the right of ownership is of an indefinite time; it may be non-voluntarily validly restricted through the time of holding the right, only in cases of serious negligence (not equal to gross negligence) of the owner.
How is ownership acquired?
In general, ownership is acquired to the extent of ownership of the predecessor in title (former owner or beneficiary of the right). This leads to the result that, if ownership were encumbered or restricted by easements, or if the predecessor did not hold ownership in fact at the time of transfer, the same extent of ownership will be acquired by the new owner.
Acquisition of ownership is effected by sale, donation, inheritance, to the extent of the predecessor in title.
Exceptions to this rule apply in the case of transfer due to adverse possession, in specific:
- the person having acted in bona fide and holding a legal title of ownership on immovable property, who is in possession of the immovable property for ten years or more, starting on acquisition, is an owner holding full powers of ownership.
- the person in possession of the immovable property for twenty years or more, starting on first time of continuous possession, is an owner holding full powers of ownership, even if he has acted without bona fide.
Adverse possession in title may not be validly argued in case that the opponent arguing that it holds ownership itself on the same piece or on the same right of immovable property, is the State.
According to Article 1033 of the Greek Civil Code, contractual transfer of ownership on immovable property requires ownership of the transferor, an agreement in writing before a notary public, which constitutes a proprietary causal contract between the transferor and the acquirer, that the property is transferred for a legitimate reason to the acquirer, as well as registration of the agreement with the competent public authority (Land Registry).
In other cases of transfer of ownership, as in transfer due to mandatory legislative provisions – such as expropriation against monetary compensation or compensation in immovable property – or due to inheritance, this transfer may take place in the absence of any contract or even knowledge of the acquirer or the transferor.
Can ownership be validly restricted?
Restrictions in ownership constitute a reduction of the powers that the right of ownership awards. In principle, ownership may be validly restricted in case of:
- abuse of the right, namely if ownership is enacted contrary to the level that a bona fide acting person is expected, from one hand, to act, and, from the other hand, to endure self-defense
- defense and situation of emergency
- rights of neighbors. The Greek law regulates the relationship of neighborhood relationship among property owners. The extent of such restrictions may consist of simple tolerance /endurance of third party actions (e.g. emissions) and may even reach up to the point of deprivation of the right (e.g. expropriation). Also, frequent restrictions of property among neighbors are easements (e.g. passage). Most wide-scope restrictions are imposed by public law provisions to serve public interest purposes
- preservation of public order and security or for the protection of the environment (indicatively: Act 998/1979 on the protection of forests and forest areas of the country).
What is the nature of the right of leasehold (ownership in surface)?
In Greek legal system, the owner of immovable property has got an absolute and unrestricted right on the ground (including surface and underground) and on any building or any other object on the surface.
The right of leasehold is a strong investment incentive brought on by crisis legislation. It was introduced into the Greek legal system by Act 3986/2011 “Urgent Measures for the Implementation of the Medium-Term Framework of the Budgetary Strategy 2012-2015” (Chapter C, Articles 18 to 26), as amended and in force.
Leasehold is the right of an individual (person or legal entity) to construct a building in a land which is, at the time of the establishment of the right, public property and to exercise on that building, or in a building already built on such property, the powers arising from the right of ownership.
The right of the leasehold is not affected in case, at a time later than the time of establishment of the right of leasehold on a specific piece of immovable property, the immovable property is transferred, by the Greek State or the legal entity of public law or the public body in the form of private entity, to a third party. As a result, the right of leasehold prevails over the right of ownership and equals to an encumbrance on immovable property.
Further, the concept of “building” includes every installation on the ground and underground (such as parking areas).
Greek law specifically provides for two valid ways of consideration against granting of the right of leasehold:
- an agreed, one-time, price, as in the case of sale of property. The price may either be paid up in full at the time that the leasehold right is established, or be credited, in whole or in part.
- a periodic consideration paid to the owner of the ground during the right of leasehold, as in lease payment - rent. Therefore, this rent may be subject to adjustments by contract or by law.
The establishment of the right requires an agreement in writing before a notary public, establishment of the right for a legitimate reason and registration of the agreement with the Land Registry.
Due to the restricted nature of the right, the right of leasehold may be established for a specific time period, after the lapse of which the right of leasehold is “overtaken” by the owner of the ground and, from that point in time, the ownership in immovable property returns to its original content (notion of confusion of rights).
A leasehold may not be established, if there exists a right of usufruct on property, or in case leasehold has already been established.
The right of leasehold may be established with a duration of up to ninety nine (99) years. This does not exclude the - even unlimited / indefinite - extension of the duration of the right, by agreement of the parties, which, nonetheless, may take place only at the end of its initial term.
Mortgage, charges on property and easements are permissible on the leaseheld building.
The termination of the right of leasehold leads to termination of the contractual agreements concluded by the lessee (leaseholder) with third parties on the building, save for cases that the owner of the ground has given his consent.
Moreover, the expiry of the right of leasehold leads to the termination of encumbrances, pledges and personal (by will) easements on the leaseheld builing
Therefore, for the purpose of enhancing the legal certainty and the protection of the interests of the principal (State), all the legal relationships created by the right of leasehold with third parties are terminated at the expiration of the leasehold.
Finally, in the event of a violation of the right of the leasehold, the provisions on the protection of property are applied accordingly.
What is the nature of easements? - The right of usufruct
Easement is the limited right conferred on the owner of another piece of immovable property, over a piece of immovable property, which results in a benefit or in an advantage to him. The owner of the immovable property burdened with an easement is obliged either to tolerate / endure certain actions coming from or being caused from the beneficiary of the easement, or to omit certain actions that he could take, if there existed no easement. Easements are conferred either for the benefit of every owner of the immovable property, in which case they are classified as objective easements, or for the benefit of a specific individual, in which case they are classified as personal.
Objective easements are: the easement of passage, the easement of passing of water (either over ground, underground, or pumping from or to the advantageous property), the easement of animal feeding or cutting of wood, the easement of the end of the roof or of the support of the building in the burdened immovable property, the easement of forbiddance of building in the burdened immovable property, or securing of light or view. All kinds of easements include restrictions over the ownership of immovable property only to the extent absolutely necessary for the indented benefit or advantage. The benefit or advantage is determined at the time of establishment of the easement and not at a later stage.
The personal easements are conferred for the benefit of a specific individual, the main of which is usufruct.
Under Greek law, usufruct is the limited right over immovable property which entitles the beneficiary to use or enjoy a piece of immovable property, without amending such property.
Easements are established either by contract, in which case an agreement in writing before a notary public is necessary, followed by registration with the Land Registry, or by adverse possession, as in the case of the right of ownership.
While objective easements exist in the favour of each owner of the immovable property having the advantage over the other piece of immovable property, existence of personal easements depends on the existence of a specific individual, being the beneficiary, and therefore terminate at the time of absence – transfer of right or death / dissolution – of the beneficiary.
Mortgage
Mortgage is a pledge over immovable property and secures a claim, monetary or other, by entitlement of the beneficiary of the mortgage (this being a creditor) to be satisfied by sale or other disposition of such immovable property, in preference over other creditors.
A mortgage may be imposed either on ownership or on usufruct, for as long as the latter is in force.
A mortgage is validly imposed as from registration in the Land Registry and provided that there exists a corresponding legal title for establishment of mortgage. Such legal title is: (a) a court judgment, (b) a contract, (c) legal provisions, most importantly, (i) right of the State to impose mortgage on its debtors for overdue taxes, (ii) right of husband or wife to impose mortgage on the other party for claims for increase of that other party’s estate during marriage (iii) right of heirs to impose mortgage on the inherited property for their claims.
The right of mortgage may be established for a specific amount that has to be determined at the time of establishment. Exceptionally, interest and legal expenses may be mentioned, as secured by the right of mortgage, in a general, unspecified amount.
The registration of mortgage stops the limitation period for exercising the claim which the mortgage secures. As from the time of registration of mortgage, a new limitation period commences.
Moreover, since it is permissible that more than one mortgages are imposed over the same piece of immovable property, the ranking of preference in satisfaction of the creditors depends on the time of registration, and the earlier registration gets preference over the next in time.
How may ownership be judicially protected?
The right of ownership is violated / infringed either by total foreclosure or by disruption unlawfully and without the owner’s will. Ownership is protected by raising the following actions: contending, negative, and publiciana.
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Contending legal action: In case immovable property is unlawfully taken over by a third party, the owner is entitled to claim:
- either the recognition of the right on immovable property to himself as the lawful owner and / or
- the surrender of the property.
The owner / plaintiff may claim at the same time for damages against the defendant, if such damages have arisen.
The law suit has to be registered with the Land Registry.
Although the right of ownership may be in fact vested on the plaintiff, as the real owner, in case there exists a lawful right of possession of the immovable property on the defendant, the law suit will be dismissed. The legitimate possessor, irrespective of whether his right is
contractual or by law, is entitled to refuse the surrender of the property, provided that such a claim has been added to the law suit.
The limitation period for the exercise of claim of ownership is twenty (20) years from the time of the unlawful action.
- Negative legal action: In case ownership on immovable property is infringed in a way other than take over or retention of the property, namely by disturbance, the owner of the property is entitled to claim that the infringement stops and may not be repeated in the future.
The infringement of property must be unlawful, without necessarily being due to the defendant’s fault. Moreover, the termination of the defendant’s action does not foreclose the plaintiff from his claim, since the action may be repeated in the future.
The owner / plaintiff may claim at the same time for damages against the defendant, if such damages have arisen.
The Greek legal system also provides for exercise of claims in court by individuals, not having full title of ownership, as long as they can prove a legitimate right to be treated by law equally to full-title owners, such as an individual in expectance of full title ownership.
