This article reviews in detail one of the methods for acquisition of ownership – the so-called adverse possession, where one party /the possessor/ acquires legal ownership over another person’s real estate /the legal owner/, who is in term deprived of his or her rights.

ACQUISITIVE PRESCRIPTION

This acquisition of ownership is a result of the legal owner’s continuous failure to act, and especially to evict the adverse possessor who occupies his property, over a certain period of time prescribed by the law /the acquisitive prescription/. Insofar as the legal owner has failed to seek enforcement of his or her rights, it is just the eyes of the law that he or she is deprived of them to the benefit of the person possessing his or her property.

ADVERSE POSSESSION

The adverse possession is a continuous non-permissive use of a real estate by the possessor or by another person on behalf of the possessor. It has two elements: (1) subjective /animus/ - the intention of the possessor to use the property as if it were his own; and (2) objective /corpus/ - the actions by which the possessor occupies the property manifesting his animus.

The possession ought to be notorious, uninterrupted and exclusive so that any persons claiming rights over the property are kept out. Secondly, the possession is not to be exercised in secret, i.e. the possessor is to openly manifest his or her actions exercising possession of the property (such actions for example is the payment of the taxes and fees relative for the property). Thirdly, the possession is to be calm and uninterrupted (the possession may be interrupted for example by the actual owner filing action for eviction against the disseisor before expiration of the statute of limitations). The interruption of the possession cancels the time that has passed before the filing of the (upheld) action. However once the judgement of the upholding the action enters into force, another acquisitive prescription may begin so long as adverse possession matching the abovementioned requirements is exercised.

GOOD-FAITH POSSESSION AND POSSESSION IN BAD FAITH

The prescription for acquiring ownership of real estate under the law varies depending on the type of the adverse possession exercised, namely 5 years for of possession in good faith and 10 years for possession in bad faith.

Possession in good faith /bonae fide possession/ is a possession based on a legal title that usually transfers the ownership from one legal owner to another (such as deed). However as this legal document is either void, irregular or defective, the innocent party has not become an owner, but an adverse possessor. For example the possession based on a deed executed by the buyer and a seller who is not the actual owner of the sold property, without the buyer having knowledge of this fact is possession in good faith.

Possession in bad faith /mala fide possession/ is a possession who is not grounded on documents standardly capable of transferring ownership; the bad-faith possessor knows that he or she is not the actual owner of the estate and it belongs to somebody else. For example the possessor who has executed a preliminary contract for the acquisition of property, but not a deed and/or he or she has not petitioned the court to announce the preliminary contract for a final one, is a possessor in bad faith.

CLAIMING OWNERSHIP BY PRESCRIPTION

The expiration of the acquisitive prescription (5 years in the case of possession in good faith and 10 years for possession in bad faith) does not automatically transfer the ownership of the real estate. According to the case law of the Supreme Court of Cassation the adverse possessor is to explicitly manifest the expiration of the acquisitive prescription. This manifestation however does not constitute an element of the prescription but a remedy for protection/enforcement of the consequences of the expiration of the prescription (for example the party may claim ownership by prescription as part of an objection to the actual owner’s action for eviction or by submitting a petition for a detailed investigation of the ownership of real estate resulting in a protocol for ownership issued by a notary public on grounds of the investigation).

It is to be noted that ownership by prescription may be claimed not only by the adverse possessor, but also by his creditors and heirs. In case only part of the whole period has expired, the expired part may be added – or tacked – to the adverse possession of the creditors/heirs.

However such purpose is only limited to the land that is private property and does not concern the real estate owned by the state or the municipalities (the acquisitive prescription by adverse possession of state- or municipality-owned real estate is limited by a specific legal provision, so called moratorium).

In conclusion, it can be summarized that the acquisitive prescription is a method for acquisition of ownership of real estate with significant practical importance. On one hand the acquisitive prescription is an original acquisition method meaning that the rights of the possessor are not founded in the rights of the former owner of the estate once prescription has expired and he or she is not to prove the existence of such rights in a court case. On the other hand, the institute of acquisitive prescription is significant because of its socio-economic purpose: to reduce the waste of land not being utilized by its legal owners to the benefit of the disseisors currently occupying and using such land.