Supreme Court Decision 41/2021 (Second Civil Chamber) – Revocation of Donation. The provided benefit is sought according to the provisions for unjust enrichment. If the donee, at the time of revocation, has already become the owner of the donated property through adverse possession, it cannot be reclaimed. The period of extraordinary adverse possession begins to run against the donor from the execution of the donation and not from the exercise of the right to revoke it.
In 2021, our office successfully obtained the issuance of Supreme Court Decision 41/2021 (Second Civil Chamber). In its aforementioned decision, the Supreme Court ruled that the appellate decision challenged by the cassation application of our opponents did not violate the substantive law provisions of Articles 505, 509, and 1045 of the Civil Code, which it correctly interpreted, as the aforementioned substantive assumptions met their factual requirements and justified their application regarding the start of the period of extraordinary adverse possession over the disputed property by our client from the execution of the donation (1984). For this reason
, the necessary time for acquiring ownership at the time of the revocation of the donation by the donor (2014) was completed. Specifically, based on the assumptions of the Court of Appeal, the time of extraordinary adverse possession (Article 1045 of the Civil Code), which we invoked to establish a legal cause for our client’s ownership of the disputed property to the extent of 1/4 undivided interest, was rightly calculated as starting from the execution of the donation (1984), and therefore this time
had been completed by the time of the revocation of the donation (2014).
Consequently, the contrary claims made by our opponents with the first reason and the second part of the third reason of the cassation from Article 559, Paragraph 1 of the Code of Civil Procedure, specifically that the time of adverse possession cannot begin before the revocation of the donation according to Article 251 of the Civil Code, were deemed inadmissible as unfounded. An excerpt from the issued decision is presented, which reproduced the reasoning of the contested appellate decision: “Pursuant to the deed of parental donation number …/13-2-1984 by the notary of Thessaloniki …………………………………….., which was lawfully registered in the land registry of Sykia, in volume …, number …, the originally plaintiff … widow … transferred to her children …………. and the defendant, a 1/4 undivided share each, of a field measuring 1,000 sq. m., located at the place “…”, in the then land district of … N. Halkidiki. It should be noted that the aforementioned parental donation agreements are fictitious and void as parental donations, as the declarations of intent of the parties were not made in earnest, but only seemingly for tax reasons, and according to the true intent of the parties, they cover donations and are valid as such. Specifically, the transfers were not made for the children of the originally plaintiff to gain their family and economic independence, as they were of considerable age, given that … was 38 years old, … was 37 years old, … was 33 years old, and the defendant was 27 years old. This deed conceals donations, which are valid since the contracting parties intended them, and all the conditions required for their valid establishment were met, as the notarial form was observed, given that they pertain to ownership rights over property and registration. The above-mentioned field was located a short distance from the sea, and the co-owners intended to use it for their summer vacations. Moreover, this was also the reason that two months after the signing of the above deed, a private agreement was concluded between the co-owners on 17-04-1984, in which they designated the parts of the field that each would use. Relying on this informal division, each exploited the area belonging to them, either by placing tents or by installing trailers.
Regarding the defendant, she exercised an ownership share of 1/4 undivided interest uninterruptedly from 1984 until the time of discussion of the lawsuit (02-12-2015), that is, for a period of more than thirty years, acts of possession with the intention of ownership, specifically supervising the property and residing during the summer in the accommodations she set up there, initially tents and later trailers. While these circumstances prevailed regarding the above field, the originally plaintiff, with her extrajudicial statement dated 12-06-2014, served on the defendant on 13-06-2014, revoked the above donation for the reasons stated in the statement of ingratitude. However, at the above time, the defendant had already become the owner of the disputed field with a 1/4 undivided interest through an original means (extraordinary adverse possession), according to Articles 1045 and 1051 of the Civil Code. The above provisions and those of Articles 904 et seq. of the Civil Code do not only formally aim at the transfer of ownership to the possessor but substantively justify this transfer according to the prevailing principle in property law of the economic value of the thing, providing in any case to the possessor a new independent cause for retaining enrichment, irrespective of whether someone possesses the thing based on an invalid or valid transfer agreement. Consequently, there exists a legal cause for retaining enrichment, namely regarding the above-mentioned donated property for the appellee, who became the owner of this property through extraordinary adverse possession and is not obliged to return the enrichment, that is, to transfer the donated property to the appellant. Therefore, the revocation of the donation made on 13-06-2014 does not exert legal effect since the appellee had already (at the time of the revocation) become the owner of this property through extraordinary adverse possession, which constitutes an original means of acquiring ownership and an independent cause for retaining enrichment and not a “cause” of donation, which constitutes a derivative means of acquiring ownership and as a cause ceased to exist due to the revocation.”
