July 2023 – Dismissal of lawsuit regarding recognition of in rem, irrigation rights

The opposing party brought an action against our client for the recognition of a right to irrigation (in rem right) easement under the institution of extraordinary usufruct, because it had allegedly used for 20 consecutive years the borehole owned by the defendant, which was located in a field also owned by the defendant, claiming (the plaintiff) that it had acquired the relevant right in that way. In fact, in the context of the above-mentioned action, and before the defendant (and out client) entrusted our office with the defence of its legal rights, the opposing party in the context of injunction proceedings had applied for and obtained the use and electrification of the disputed borehole by the Public Electricity Company in its name, thereby achieving the exclusion of our (later) client from the use of the borehole, with all the harmful consequences that this could have and had for her (impossibility of leasing the plots of land owned by her due to the decommissioning of the water supply capacity of the properties or their leasing at an extremely low price as non-irrigation).

In the context of developing a specific and coherent strategy, in the first phase, the fact that the conditions set by the granted Temporary Order as a condition for the electrification of the disputed drilling had been violated by the opposing party, while at the same time, in the context of defending the abovementioned action brought by the opposing party-appellant (on which the abovementioned Interim Order for the electrification of the well in question was also based), all the issues, both legal and factual, raised by that action were addressed.   

In addition to the grounds which rendered the above action of the opposing party unlawful and essentially unfounded, we also raised, inter alia, a plea of inadmissibility on the ground that a serious procedural irregularity had arisen since the filing of the action.

According to Art. 220 par. 1 of the Code of Civil Procedure, the lawsuit for the confession of an in rem right (such as the one brought against our client by the plaintiff for the recognition of a right of irrigation in her person), is among those that must be registered with the locally competent land office, and in particular, under penalty of inadmissibility. In other words, the failure to register the lawsuit at the Land Registry, has as a procedural sanction the rejection of the claim as inadmissible, in accordance with Art. 220 § 1 of the Civil Code. It should be noted that the registration or non-registration of an action is subject to review by the court of its own motion.

However, the plaintiff did not, in this case, make the mandatory registration of its claim in the claim books in respect of the disputed property where the disputed drilling is located and for this reason, the Court of First Instance, accepting our claim, dismissed the claim of the opposing party as inadmissible.

This, together with the actions taken against the Interim Order granted for the electrification of the disputed borehole in the name of the opposing party, had the immediate effect of reversing the situation created against our client and restoring the use and electrification of the disputed borehole in her name. The property may now be put into beneficial use.