DECISION: 120/2024

(General Filing Number: ______)

(Specific Filing Number: _________)

THE MAGISTRATE’S COURT OF KASSANDRA

ORDINARY PROCEDURE

COMPOSED OF Magistrate ______________ and Registrar __________.

HELD A PUBLIC HEARING in its courtroom on ___________, to adjudicate the case between:

THE PLAINTIFF: ______________, residing in ____________, Tax ID (AFM) ____________, represented by attorney-at-law __________ (Thessaloniki Bar Association Reg. No. _____), who filed written pleadings pursuant to Article 237(1) of the Code of Civil Procedure (CCP), as replaced by Articles 12 and 120 of Law 4842/2021.

THE DEFENDANT: ______, wife of ________, née ___________, residing in ____________, Tax ID (AFM) ___________, represented by attorney-at-law Angeliki Karoni (Chalkidiki Bar Association Reg. No. 93), who filed written pleadings pursuant to Article 237(1) CCP, as replaced by Articles 12 and 120 of Law 4842/2021.

The plaintiff requests that her lawsuit against the defendant, dated ______ and filing number __________ (general filing number __________), be granted. The hearing was initially scheduled for _________ and, following an ex officio re-listing due to the suspension of court proceedings during the parliamentary elections of ___________, was set for the court date indicated at the beginning hereof.

The hearing in open court took place without the physical appearance of the parties’ attorneys-at-law.

HAVING EXAMINED THE CASE FILE

AND CONSIDERED IN ACCORDANCE WITH THE LAW

Under Article 984(1) of the Greek Civil Code (GCC), possession is infringed upon either by disturbance or by dispossessing/evicting the possessor, provided these acts occur unlawfully and without the possessor’s consent. An infringement of possession constitutes any positive act or omission by the tortfeasor that results either in dispossessing the possessor of possession or disturbing the possessor in the exercise thereof (Supreme Court [AP] 306/2004, AP 1127/2001, AP 1260/1998). Specifically, pursuant to Articles 974, 976 first sentence, 984(1) second sentence, and 987 first sentence GCC, in conjunction with Article 216(1) CCP, the essential elements of an action for the protection of possession arising from dispossession of real property include, inter alia: (a) that the plaintiff held possession of the disputed property—specifically, had acquired and held it with an intention to hold as owner (animus domini) and exercised actual control over it as owner at the time of dispossession, regardless of how long the plaintiff had possessed the property or when possession began (AP 1417/2002, AP 1368/1996, AP 1202/1993, Athens Court of Appeals [EA] 9630/2002, EA 848/2009); (b) unlawful dispossession without the possessor’s consent (AP 1417/2002, AP 1368/1996, AP 1202/1993, EA 9630/2002); and (c) an accurate description of the property (AP 1417/2002, EA 848/2009), specifying its nature, surface area, location, and boundaries so that it is individualized and no doubt arises as to its identity (AP 2002/2006, AP 712/1993). Where dispossession concerns part of a larger tract, its location within the larger tract and its specific boundaries must be set forth without reference to diagrams unless incorporated into the pleading itself (AP 2002/2006, AP 712/1993, EA 848/2009). The action is directed against the dispossessor, who, upon the plaintiff’s loss of possession, acquired possession thereof and retains it at the time the action is filed (AP 1260/1998, AP 1202/1993), and the prayer for relief is the recovery of possession (AP 503/2009, AP 1417/2002, AP 1260/1998, AP 1202/1993, EA 848/2009), since the objective of the action is the restoration of the dispossessed possession—without excluding a purely declaratory action in cases of mere dispute of possession (AP 1417/2002, AP 324/2002, AP 1058/1996).

Disturbance of possession is interference with the possessor’s exercise of possession. The possessor is not ousted from the property but retains possession; however, without being wholly deprived of physical control, the possessor is hindered in certain manifestations thereof by interference stemming from a positive act or omission by the tortfeasor. A disturbance is manifested positively either through an act upon the property or through obstruction of an act by the possessor, and negatively through omission when the tortfeasor fails to perform a mandatory action to avert or cease the disturbance (AP 1717/2006, AP 1386/1998, AP 1260/1998, EA 2050/2009). The relevant action under Article 989 GCC is directed against the tortfeasor, seeking an injunction ordering the defendant to cease the disturbance, if ongoing, and to desist from future disturbance (AP 503/2009, AP 1577/2003, AP 1260/1998). Dispossession and disturbance are distinct concepts, and whether one or the other occurs is evaluated case by case (AP 864/2005, AP 1260/1998, AP 1360/1996, AP 52/1999, EA 1583/2010). Consequently, joinder of an action for dispossession and an action for disturbance in the same pleading is impermissible because they are mutually contradictory (Article 218(1)(a) CCP). However, when dispossession from a distinct part of real property coincides with disturbance of possession over the remainder, objective joinder of both actions is permissible, as each relates to a distinct portion of the property (EA 1583/2010, EA 6583/1999). Otherwise, joinder is possible only on a subsidiary basis under Article 219 CCP.

In the lawsuit at issue, the plaintiff states that, by virtue of notarial deed No. __________ of Thessaloniki Notary _______________, she is the owner, possessor, and occupier of an autonomous and independent first-floor apartment of building A1 within a residential complex, located in the Municipal District of _________ (now Municipal Community of ____________), Municipal Unit of Kassandra, Municipality of Kassandra, Regional Unit of Halkidiki, measuring a gross area of 50 sq.m., as described in detail by location, area, and boundaries. She states that the defendant is the pre-contractual possessor of the ground-floor apartment situated directly below the plaintiff’s apartment in said building. She further states that around said building, there is a common-use/shared area encircling the building on three sides in a U-shape (capital Greek letter Π), abutting three exterior walls, with a total area of 65.265 sq.m., as depicted under points ΑΒΓΔΕΖΗΘΙΚΑ on the site coverage plan prepared by architect-engineer ____________ and incorporated into the complaint.

The plaintiff further alleges that in early August of the year _____ and throughout that month, the defendant arbitrarily occupied the shared area surrounding building A1, ousting the plaintiff from her prior joint possession (co-possession) thereof. Specifically, the plaintiff claims the defendant ousted her by: installing solid steel metal railings along the front boundary facing the communal road parallel to the building facade (side AB, measuring 5.85 linear meters), joining perpendicularly with the shared fence; replanting mature, densely spaced shrubs and placing domestic garden furniture (side B-C); replanting mature shrubs and placing garden furniture along the southwestern side between buildings A1 and A2 in a U-shape (along a 9.50m segment and two 2.25m segments), forming an impassable barrier for vehicles or pedestrians (sides Γ,Δ,Ε,Ζ); installing solid steel railings at the rear of the building toward building C of third-party co-owners along the southeastern side (side ΘΗ, measuring 5.70 meters); and replanting mature shrubs and placing garden furniture along a 3.50m stretch (side ΖΗ), creating an impassable hedge.

The plaintiff also claims that the defendant acts in a hostile manner whenever she attempts to pass through, that the defendant unlawfully connected her toilet sewage discharge to the plaintiff’s pipeline installed on the rear wall, and that she discharges kitchen sewage into an old septic tank that has overflowed. Consequently, the plaintiff claims moral damages and prays that: (a) she be declared a co-possessor of the detailed shared space (assessed at 4,240 euros), (b) the defendant be ordered to surrender co-possession of said shared space, (c) the defendant be ordered to remove all fence sections, iron barriers, shrubs, and garden furniture at her own expense (or allow the plaintiff to do so at the defendant’s expense upon default), (d) the defendant be ordered to disconnect her toilet sewage line from the plaintiff’s pipe and cease discharging kitchen waste into the septic tank, (e) the defendant be ordered to pay an advance of 1,000 euros for bailiff and technical enforcement costs, (f) the defendant be ordered to desist from future acts of dispossession or disturbance under threat of a 1,000-euro penalty per violation, (g) 1,500 euros in moral damages be awarded, (h) the judgment be declared provisionally enforceable, and (i) the defendant be ordered to pay legal costs.

Regarding the characterization of the action, the Court properly categorizes the asserted facts as an action for dispossession of possession. The claim for disturbance of possession regarding the shared courtyard is joined impermissibly, as the alleged disturbance does not refer to distinct sections of the shared space but asserts disturbance over the whole. Conversely, the prayer seeking disconnection of the sewage pipe constitutes a claim of disturbance of possession that is permissibly joined, as it concerns a distinct object (the sewage line) rather than the land area. The lawsuit was registered in the lis pendens records of the Kassandra Land Registry (Certificate No. ___________) pursuant to Article 220(1) CCP and is lawfully brought before this Court (Articles 9, 11(1), 14(1)(a), 29 CCP). It is legally founded on Articles 974, 984, 987, 914 GCC and Articles 176, 907, 908(g) CCP, EXCEPT: (a) the prayers for removal of fences, shrubs, and furniture and the injunction against future disturbance under threat of penalty, which are legally unfounded because such relief belongs exclusively to an action for disturbance (Article 989 GCC) rather than dispossession; and (b) the auxiliary prayer for a 1,000-euro advance for prospective enforcement and bailiff fees, which lacks statutory basis, as Article 945(2) CCP does not encompass such expenditure. The mandatory mediation briefing form under Article 3(2) of Law 4640/2019 and court stamp fees were duly filed.

In her written pleadings, the defendant substantiated a total denial of the lawsuit on the law and facts, sought its dismissal, and raised the defense of abuse of rights (Article 281 GCC), arguing that the plaintiff had signed the coverage/layout diagram agreeing to green areas (willows, pines, cypresses, privets) and had complained in 2018 about the lack of perimeter fencing, only to sue when it was erected; further, the defendant did not alter the existing sewage configuration upon purchasing her apartment in 2017. The defendant also raised a subsidiary defense of the one-year statute of limitations (Article 992 GCC), alleging that the acts in dispute took place 2 to 3 years prior to service of the lawsuit.

From the evaluation of all adduced documents, the sworn affidavit No. __________ of the plaintiff’s witness before Thessaloniki Notary ___________, the sworn affidavits No. __________ of the defendant’s witnesses before the Magistrate of Kassandra, undisputed photographs (Articles 444(3), 448(2), 457(4) CCP), party admissions, and common experience (Article 336(4) CCP), the Court finds the following essential facts:

By virtue of deed No. __________ of Thessaloniki Notary ____________, lawfully registered at the Kassandra Land Registry (Vol. ____, No. ____), the plaintiff owns, possesses, and occupies apartment No. 2 on the first floor of building A1 within the complex, measuring 50 sq.m. gross (45.04 sq.m. net), with an undivided co-ownership share of 6.10/100 in the parcel and common areas. By virtue of preliminary purchase agreement No. _________ with building developer __________, the defendant acquired possession and occupation of ground-floor apartment No. 2 of the same building A1, measuring 38.76 sq.m., with a corresponding 6.10/100 undivided co-ownership share.

The complex was erected on a parcel of 1,563.80 sq.m. in Building Block Γ ___ of the settlement. It consists of six ground-floor and three two-story residential buildings. Building A1 is separated from building A2 by a shared area (35.55 sq.m.) containing a staircase attached to building A2 leading to the first-floor units. In front of building A1 (NW), there is a shared trapezoidal area of 23.94 sq.m., and to the rear (SE), a shared rectangular area of 19.95 sq.m. Building A1 is bordered by shared space on three sides, while its fourth side forms the parcel boundary with adjacent third-party land.

Regarding the alleged dispossession, evidence—including testimony from the developer who built the complex and the site gardener—proves that all original purchasers and co-owners, including the plaintiff, signed the site layout and landscape diagram alongside their purchase deeds, agreeing to designated green spaces containing willows, pines, cypresses, and privet shrubs. All existing plants in the courtyard about which the plaintiff complains were ordered by developer _____________ and planted in accordance with the approved diagram by gardener ____________. The defendant did not plant them; she found the landscaping already in place when she took occupancy.

Furthermore, regarding the external boundary fence, Building Permit No. ______ expressly authorized the construction of an exterior perimeter enclosure. The defendant merely erected the fence along the property boundary exactly as stipulated in the building permit—as done by the other co-owners in the development—leaving openings to ensure access into the grounds (corroborated by witness affidavits and Building Authority Document No. ____________).

Consequently, the plaintiff’s use of the shared space was in no way restricted: she is able to enter the courtyard, park her vehicle, and access her residence via the staircase. This is corroborated by the plaintiff’s own photographs, which display openings between plants and the perimeter fence allowing unimpeded access. Both defense witnesses confirmed that the plaintiff can freely enter the courtyard in front of the defendant’s apartment and park her vehicle. Moreover, the plaintiff failed to produce photographic evidence demonstrating her claims regarding solid steel railings or an impenetrable hedge along the rear sides (side ΘΗ measuring 5.70m and side ΖΗ measuring 3.50m).

Finally, as to sewage disposal, the installation of a wastewater treatment system was decided collectively by the co-owners in the year ____. Following intervention by the developer, an additional inspection manhole was installed in the year ____, connecting the building containing the parties’ apartments to the municipal sewage network through a single drain. These events occurred well before the defendant acquired her apartment, and shared drainage use does not impair the plaintiff’s enjoyment. The defendant made no alterations to the plumbing, having simply connected to the municipal system and paid the corresponding municipal utility charges (proved by payment receipt from Bank __________ dated _______). The underground septic tank was built of reinforced watertight concrete under the supervision of architect-engineer ____________ in compliance with approved building plans.

Accordingly, the plaintiff—who bore the burden of proof following the defendant’s reasoned denial—has failed to substantiate her claims. Therefore, the lawsuit must be dismissed as substantively unfounded, rendering an examination of the defendant’s affirmative defenses unnecessary. Court costs are assessed against the defeated plaintiff pursuant to Article 176 CCP.

FOR THESE REASONS

ADJUDICATING in contested proceedings.

DISMISSES the lawsuit.

ORDERS the plaintiff to pay the defendant’s legal costs, assessed at three hundred (300) euros.

CONSIDERED, RESOLVED, AND DELIVERED on _____________ at an extraordinary public hearing in its courtroom in Kassandreia, Chalkidiki, in the absence of the parties and their counsel.

THE MAGISTRATE

THE REGISTRAR