The Information Letter sets out the examples of correct resolution of disputes related to the aforementioned category (those arising from the so-called “negative action” or actio negatoria which is normally used against trespass or nuisance). In particular, it follows from the letter that:
- by virtue of Art 208 of the Civil Code the statute of limitation (prescription) does not apply to negative action;
- in the event of leasing out a property, the right to bring negative action lies with both lessee and lessor, the latter being a non-possessing owner of the such property whose right may be violated by a third person who uses the property of another without the consent of the owner, even though it impinges upon the possession of lessee, not the owner (lessor). The participation in proceedings of both lessee and lessor is mandatory for such cases;
- if plaintiff is in possession of dominant estate (a land plot), his demand to remove obstacles to exercising his right of easement to pass and repass through servient estate (his neighbor’s land plot) is a negative action, and therefore statute of limitation does not apply;
- if lessee starts breaching the rights of another person, and after the termination of his tenancy rights and returning of the property to the owner the violation continues, the respondent under a negative action should be the owner;
- when a person carries out certain works on his land, he may still violate his neighbour’s right to ownership if the works in question cause a real risk of destruction of the property of the neighbour; under Art 304 of the Civil Code a cause of action exists wherever the respondent’s wrongdoing takes place, be it the land of the plaintiff or his own land;
- the lack of objections of the previous owner against violations of his property rights (by a trespass or nuisance) may not in itself be a ground for refusing to satisfy a suit of a new owner against such violations;
- if a person who is in actual possession of the property demands to recognise the rights of another person to the property in question to be non-existent, such suit would be analogous to a negative action and therefore the statute of limitation shall not apply;
- when satisfying a negative action, court may oblige the respondent to pay a certain amount in case he fails to execute within the prescribed term the court decision delivered against him (for instance, if he fails to remove waste from the plaintiff’s land plot). This amount should be equal to the foreseeable cost of such works for the plaintiff.
