Restitution by an Unlawful Possessor

Real Estate and Property

Prepared by: Constantinople

When the right to use or hold property ends, accounting for benefits, damage and expenses may arise alongside return. Whether the possessor acted in good or bad faith matters in that calculation.

The Source of the Obligation to Return

Termination of a valid agreement is not the same as use lacking any legal basis from the outset. The relationship under which the thing is held and when it ended are identified first. Return based on ownership, contractual restitution and claims in enforcement proceedings may require different procedures.

Good Faith, Benefits and Expenses

The right on which the possessor believed they were entitled to use the thing, when they learned no such right existed and what could be expected of them are examined. Benefits obtained, compensation for use, damage and expenditure are not calculated by the same measure in every case. Necessary or useful expenditure must be distinguished from spending based on personal preference.

Documenting the Account

Records of the period of use, rental income, production, maintenance and repairs are compared. For compensation for unauthorised use or another monetary claim, the legal basis and requirements must be clearly stated. Incurring an expense does not confer a right to prevent return indefinitely; defences such as retention or set-off are examined subject to their own requirements.

Documents to Prepare for an Initial Review

Send each document in its entirety as held by you, rather than only its first page or a screenshot. We determine, according to the file, what authority is needed to obtain missing official records. The following records are helpful at the outset:

• Dates of delivery and the request for return
• Basis of use
• Income and benefit records
• Expense invoices
• Damage and repair documents

Why Do the Particular Circumstances Matter?

For example, a property user's assertion that they repaired the roof does not automatically extinguish the entire compensation claimed for use. The legal capacity in which the property was used, the nature of the expense and documented amounts are compared separately.