Prescription of immovable property

The institution of prescription of ownership of a real estate is regulated in Article 172 of the Civil Code. This provision states that a holder of real estate who is not its owner acquires ownership by prescription if he has held the real estate continuously for twenty years as a spontaneous possessor, unless he obtained possession in bad faith (acquisitive prescription). After the expiry of thirty years, the holder of the property acquires ownership of the property, even if he or she obtained possession in bad faith.
The succession of a property, which consists in the transfer of ownership of the property to its holder in its own right, occurs by operation of law with the expiry of the time limits provided for by law. The prescription of real estate is a type of primary acquisition. Thus, it is considered that the one who acquires ownership of real estate by way of acquisitive prescription is the original owner of the real estate. In other words, it is not an acquisition of a right from another entity and the rule nemo plus iuris in alium transferre potest quam ipse habet, applied only to the acquisition of a derived subjective right, does not apply.

Prerequisites for the prescription of immovable property

• sole possession

The sole possessor is the one who possesses the property as if he were the owner. Possession contains an element of will (animus possidendi) and an element of factual authority (corpus possessionis).
Possession of an item as if it was the owner’s means that the holder actually exercises the powers that exhaust the content of the right of ownership, in particular uses it to the exclusion of others, considers himself entitled to collect the benefits and income and to dispose of it.

• passage of time

The time limits for the acquisition of the right of ownership vary depending on whether the freeholder is in possession of the property in good or bad faith. Good faith possession consists of the belief that the holder has a legal title to the property. On the other hand, bad faith will be a spontaneous possessor who knows that he or she does not serve a legal title to the property or could easily find out.
A holder in good faith acquires the right to the property at the end of 20 years, while a holder in bad faith acquires the right at the end of 30 years.
The period of limitation of prescription may be interrupted by an action on the part of the owner wishing to regain de facto power over the property. The course of the period of prescription is deemed interrupted before an action is taken which aims to regain possession of the property by the holder of the legal title, e.g. by sending a summons to hand over the property, bringing a vindicatory action, taking certain factual actions leading to the regaining of de facto power, payment of property tax, etc.

Addition of time of possession of predecessor

In some cases, the duration of the predecessor’s possession is taken into account when calculating the time limit for the period of the prescription. The regulation in this respect is introduced by Article 176 of the Civil Code, which provides as follows:

• 1. If possession has been transferred during the course of the period of the prescription, the present holder may add the time of possession of his predecessor to the time for which he himself has possession. However, if the predecessor holder obtained possession of the property in bad faith, the time of his possession may be added only if, together with the time of possession of the present holder, it amounts to at least thirty years.
• 2. The above provisions shall apply mutatis mutandis where the current holder is the heir of the previous holder.

Legal status as at 9.10.2024