Possession is direct or indirect actual control over a thing. In the first paragraph of Article 24 of the Law of Property Code (hereinafter referred to as the “SPZ”), direct possession is defined as direct actual control over a thing. The second paragraph of Article 24 of SPZ which defines indirect possession also sets out that possession is also held by a person who exercises actual control over a thing through another person who has direct possession on the basis of any type of legal title. Both the indirect and the direct possessor are entitled to judicial protection of possession. The protection of possession is characterized by the protection of possession, independent of the ownership right. Actual control over a thing does not mean, however, that the possessor must maintain physical contact with said thing at all times. Possession constitutes a relationship between a subject and a thing in which the subject uses the thing, enjoys it or disposes of it, whereby said relationship with the thing must also be visible from the outside based on concrete actions performed by the individual (as follows, for example, from the Decision of the Higher Court in Ljubljana, ref. II Cp 1505/2022 of 11 November 2022).

Depending on the intensity of unlawful interference with possession, we distinguish between deprivation of possession and disturbance of possession. The main difference between the two is that interference with possession is less intense in disturbance of possession than in deprivation of possession. Disturbance of possession regularly occurs in real estate (e.g. arbitrary use of a part of immovable property of another person), whereby the deprivation of possession usually involves movable property (e.g. arbitrary seizure of movable property which was not handed over within the agreed deadline). The protection of possession is provided using two methods, i.e. self-help (which only applies exceptionally) and as judicial protection of possession – filing a lawsuit.

However, it is impossible to take possession of the public good (e.g. a public road), which is why the protection of possession is also excluded. The result of the exercise of the right to protection of possession is namely the restoring of the previous state of possession. This satisfies the principle of continuity of possession, since the state in which the possession was found before the disturbance is restored after the exercise of the right of protection of possession. If it is not possible to restore the previous state, the possession shall remain unprotected (as follows, for example, from the Decision of the Higher Court in Ljubljana, ref. I Cp 1826/2022 of 22 March 2023).

Article 32 of the SPZ stipulates that judicial protection against disturbance or deprivation of possession can be claimed within thirty days of the day on which the possessor learned of the disturbance and of the perpetrator and no later than one year from the day on which the disturbance originated. The thirty-day deadline is a subjective deadline that is related to subjective circumstances. This deadline shall begin on the day on which the possessor learned of the disturbance and of the perpetrator. If the disturbance is repeated, the deadline shall begin on the day of the last disturbance. However, the objective one-year period shall begin on the day on which the disturbance originated. Article 33 of the SPZ stipulates that the court shall provide judicial protection with respect to the last state of the possession and any disturbance that has occurred. In this regard, the possessor’s right of possession and good faith are not taken into account. The only circumstance according to which the possessor shall not be entitled to legal protection is if the disturbance or deprivation of possession was based on an Act. The court must therefore determine the last possessor of the thing and whether the possession was disturbed or deprived of at all, while taking into account neither the possessor’s right of possession nor their good faith. Article 34 stipulates the extent of judicial protection and states that the court shall issue a decision regarding the claim for protection from disturbance of possession prohibiting further disturbance of possession or ordering the return of possession and other measures, which are necessary for the protection against further disturbance.

Article 425 of the Civil Procedure Act (hereinafter referred to as the “ZPP”) stipulates that, when it comes to setting deadlines and hearings in litigations due to disturbance of possession, the court must always pay special attention to resolving the matter as quickly as possible based on the nature of each individual case. The deadlines for enforcing protection of possession are short (the deadline for responding to a lawsuit and the deadline for appeal is of eight days). These deadlines are material cut-off dates which cannot be extended and do not allow for restitutio in integrum.

District courts have jurisdiction when it comes to proceedings due to possession disturbance disputes, regardless of the value of the disputed subject (Point 1, Paragraph 2, Article 30 of the ZPP), with the court in the area of which the immovable property is located having exclusive territorial jurisdiction (Paragraph 2, Article 57 of the ZPP); if the immovable property is located in the area of several courts, each of these courts has jurisdiction (Paragraph 2, Article 57 of the ZPP). In addition to the court having the general territorial jurisdiction, the court in the area of which possession was disturbed (Paragraph 3, Article 57 of the ZPP) also has jurisdiction in proceedings due to movable property possession disturbance disputes.

The disturbance of possession must be intense to such an extent that the possession is partially deprived of or that the possessor’s peaceful enjoyment of possession is disturbed. If this is a one-time act, it must decisively intrude into said peaceful enjoyment of possession. Protection of possession is, by its nature, intended to protect the economic interest. This is a matter of the minimum threshold for the validity of a claim which prevents the misuse of the institute of protection of possession. Any change in the actual situation does not necessarily constitute a disturbance; said change must be of an economical and practical significance/benefit for the possessor.

In proceedings due to disturbance of property, the plaintiff has no legal interest in the declaratory part of the claim, which is why recent case law also rejects these claims. Disturbance proceedings are therefore an action for performance (as follows, for example, from the Decision of the Higher Court of Koper, ref. I Cp 436/2001 of 22 August 2001).