How to acquire ownership of an apartment by usucaption?

possession of an apartment, a detailed article on this subject
Piotr Kłodziński|
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Acquiring ownership of an apartment does not have to involve only purchasing it from a developer or on the secondary market, which constitute the so-called a derivative method of acquiring property rights. It is also possible to acquire ownership of a residential premises in a primary manner, through the institution of adverse possession, but it is important that the apartment is previously separated, i.e. has a land and mortgage register (see the Decision of the Supreme Court of May 6, 1980, III CRN 45 /80, OSNC 1980, no. 12, item 240). In this article, we explain the principles of adverse possession of ownership, what conditions must be met to acquire ownership of a residential premises, and how much time must pass for such adverse possession to occur. .

What is adverse possession? What does adverse possession of real estate involve?

Adverse possession is one of the examples of the legislator's use of the so-called the institution of antiquity, and therefore linking the passage of time with certain negative consequences in the sphere of rights and obligations of civil law entities. In the case of adverse possession, this negative consequence is the definitive loss of property by one person, correlated
with its acquisition by another civil law entity.

Interestingly, the new owner does not become the owner after the court issues a judgment, he is the owner by operation of law itself, which is why we are talking about a finding of adverse possession by the court. However, in order for us to talk about adverse possession, we must first verify that the statutory conditions are met.

The subject of adverse possession may be both immovable property and movable property. Depending on the subject of adverse possession, the provisions of Polish law formulate different rules both as to the possibility of acquiring ownership rights by adverse possession, as well as the detailed conditions on which this acquisition was made dependent - however
In this article, for practical reasons, we focus only on adverse possession of the apartment.

The institution of adverse possession of real estate is defined by the provisions of the Civil Code (Articles 172-176 of the Civil Code). Pursuant to the content of Art. 172 § 1 CC: a holder of real estate who is not its owner acquires ownership if he has held the real estate continuously for twenty years as an independent possessor, unless he obtained possession in bad faith (acquisitive prescription).. This is a legal definition of adverse possession, but this definition - as it is easy to notice - also includes other legal terms, which we explain below.

Who can apply for adverse possession?

Spontaneous possessor - that is, the basic premise for adverse possession

This is a person who actually holds the thing as the owner, but does not have any identification
in relation to this thing, the right of ownership. The state of ownership - as a factual state - consists of two elements, i.e. corpus (actual control over the thing) and animus (will to possess). At the level corpus it is about the actual performance of acts of power over a given thing (e.g. living in a given apartment, carrying out renovations, etc.), while at the level animus it is about the feeling, manifested to the outside world, that a given person considers himself or herself the owner of things (e.g. submitting applications for disclosure of ownership in section II of the land and mortgage register, paying real estate taxes, etc.).

In the light of the above, from the perspective of the topic under study, it is necessary to separate two concepts - the owner of the apartment as a person who has the ownership right to the residential premises (disclosed in appropriate registers, such as land and mortgage registers), and the independent owner who does not have the right of ownership, but he controls the apartment and considers himself the owner (he owns the apartment as an independent owner).

Good faith when acquiring possession of an apartment

In accordance with the restrictive concept of good faith dominant in the jurisprudence of the Supreme Court, good faith is understood as an erroneous, but justified by the circumstances, belief that a given person is entitled to a specific right. In other words, it is justified ignorance of the true state of affairs, usually consisting in the existence of some legal relationship or law. The concept of good faith therefore consists of three elements: (1) the belief in the existence of a right or legal relationship (or their non-existence); (2) the groundlessness of this belief and (3) the possibility of justifying the error in given circumstances (as: P. Machnikowski [in:] Civil Code. Comment, ed. prof. Ph.D. Edward Gniewek, prof. Ph.D. Piotr Machnikowski, Warszawa 2023, Issue 11, art. 7, n.b. 1).

Therefore, this is a case where a person who owns a certain thing is not aware that someone else is its owner, or believes that he is the rightful owner of the thing, or assumes that the thing belongs to no one. Importantly, the interested party must contribute due diligence, and thus recognize that his belief regarding a given property or movable property is actually one and the same. Good faith is excluded both by positive knowledge of the lack of a right and the lack of such knowledge resulting from lack of due diligence, i.e. negligence (Decision of the Supreme Court of April 6, 2018, III CSK 322/17, LEX No. 2490601).

Bad faith a adverse possession of real estate

According to the jurisprudence's views, a person who, invoking his right, knows that he is not entitled to this right, or a person who, although he is not aware of the fact that he is not entitled to a specific right, is in bad faith, is unaware of it. is not justified in the light of the circumstances of a given case (III CSK 322/17).

Therefore, we speak of possession in bad faith when someone knows or should know that another person is the owner of a given thing. There can be many such cases - the simplest is when we use a given thing knowing that someone else is its rightful owner. Another example is a situation in which a person rents a residential premises and then stops paying rent to the owner, believing that the premises are in fact their property.

In fact, what is crucial is the circumstances in which the owner of the property, who was not previously its owner, acquired possession of it. The consequence of establishing the holder's bad faith is that the period of spontaneous possession necessary to acquire the property by adverse possession is extended to 30 years. This means that only after thirty years the owner of the property acquires ownership of the property. However, he acquires them one way or another, even if he obtained possession in bad faith.

Adverse possession of real estate: good and bad faith and the form of a real estate sales contract

It is also worth mentioning the issue of people who acquired property. apartments on the basis of a sales contract concluded without the form of a notarial deed. In the past (in the post-war years), these situations were relatively common, which translates into the views presented in case law regarding the institution of adverse possession. Originally, the Supreme Court assumed that failure to comply with the form of a notarial deed does not automatically result in the property owner being considered to be in bad faith. Over the years, however, this view evolved and eventually the above-mentioned restrictive concept of good faith crystallized in the case law. According to the resolution of the Supreme Court of December 6, 1991 (reference number III CZP 108/91), "A person who came into possession of real estate on the basis of an agreement to transfer ownership, concluded without the form of a notarial deed, is not the sole owner in good faith". This resolution has the force of a legal principle, so it is binding on other courts. In the case of such persons, adverse possession occurs only after 30 years of possession.

How to determine good or bad faith when acquiring ownership of real estate?

The appropriate moment for determining the good or bad faith of the possessor is the state at the time of taking possession of a given thing. Any subsequent realization that the owner of the apartment is someone else does not affect the above qualification under the principle mala fides superveniens non nocet – which is of fundamental importance from the perspective of the length of adverse possession. Therefore, if you later learn that someone else has the legal title to the apartment, it will not negatively affect the period of possession required by law.

Importantly, the provisions of the Civil Code provide for the presumption of good faith (Article 7 of the Civil Code). This is a rebuttable presumption (preasumptio iuris tantum) - which means that until it is adequately proven that there were circumstances that the holder held a given thing in bad faith, good faith should be assumed on his part. This is definitely an advantage for the sole proprietor, but it does not prevent the owner from asserting his rights.

Ownership by adverse possession

As mentioned above, adverse possession of real estate is the primary method of acquiring ownership, which means that the entity acquiring ownership in this way does not derive its rights from another person. The already mentioned article 172 of the Civil Code obviously applies to all types of real estate - buildings, residential premises, land, even shares in co-ownership of real estate, as well as agricultural real estate.

Conditions for adverse possession of real estate - uninterrupted possession

Adverse possession of real estate (apartment) is described in the above-mentioned Art. 172 of the Civil Code. According to the above-mentioned norm, in order for the ownership right to pass, the following conditions must be met:

1) stating that the new owner has uninterrupted possession of the property and actually disposes of it - i.e. establishing independent possession of the apartment;

2) passage of time - twenty years in the case of good faith and thirty years in the case of bad faith, respectively.

We can talk about uninterrupted possession of a flat when the owner has continuous possession of it and there are no obstacles that permanently prevent ownership.

A contrario any temporary obstacles will not act to the detriment of the spontaneous holder. The presumption of continuity of ownership, specified in Art. 340 of the Civil Code. Pursuant to this provision, continuity of possession is presumed, while the impossibility of possession caused by a temporary obstacle does not interrupt this state. Most often, therefore, if continuity of possession is demonstrated at specific points in time, the continuity of possession condition is met.

Adverse possession of real estate - how many years must pass before the ownership rights pass to the buyer? When is adverse possession possible?

Intrinsic possession must last for an appropriate period of time for the second condition for adverse possession to be met. We're talking about ownership for 20 or 30 years. The circumstance affecting the duration of adverse possession is spontaneous possession in good or bad faith - these concepts have been explained above. Owning an apartment in good faith requires this state to continue uninterrupted for 20 years. Only after this period will the original ownership be acquired by adverse possession.

In the event of adverse possession of real estate in bad faith, the sole possessor is obliged to continuously possess it for a period of 30 years. A consequence of conscious action de facto contrary to the law, there is a longer "waiting" period for the initial acquisition of ownership.

Importantly, adverse possession takes place by operation of law. If the entity holding the ownership right owns the apartment for 20 years (in the case of acquiring possession in good faith) or 30 years (in the case of acquiring possession in bad faith), it will acquire the ownership right after the specified period of time, without the need to obtain an appropriate judgment.

How to calculate the period of adverse possession? Is 20 or 30 years of real estate ownership really enough?

The period of adverse possession of the apartment, i.e. the period during which the owner has possession of the property, is counted from the day on which the independent possessor began to actually possess the apartment (both the element coprus What animus). Unfortunately, it does not expire exactly on the day on which 20 or 30 years have passed, respectively - in this case, the principle that the deadline "extends" until the end of the calendar year applies, which results from Art. 175 in connection with joke. 118 of the Civil Code:

Art. 118.

Unless a specific provision provides otherwise, the limitation period is six years, and for claims for periodic benefits and claims related to running a business - three years. However the end of the limitation period falls on the last day of the calendar year, unless the limitation period is shorter than two years.

Art. 175.  

To the course of adverse possession the provisions on the limitation period for claims apply accordingly.

Therefore, if a given person took possession of the apartment on March 3, 2001, the deadline for acquiring possession of it will expire on December 31, 2021 or December 31, 2031, respectively (depending on the good or bad faith of the owner). Even though the 20 or 30 years of possession of the property actually expired on March 3, 2021 or 2031, the provisions of the Civil Code extend this period to the last day of the calendar year before the apartment becomes the subject of ownership after adverse possession of the property.

Adding the predecessor's time (accessio possessionis) – ownership of real estate

At this point, attention should also be paid to other institutions of the Civil Code, which are important when calculating the adverse possession period.

The first of such institutions is adding the time of possession of a given item by the predecessor. There may often be a situation in which the legal predecessor (e.g. the testator) owned the apartment and then transferred this ownership to another person. Polish law provides for the possibility of adding the time of possession of the predecessor to the time of possession of the successor, which only when "summed up" will allow for the acquisition of ownership of the apartment by adverse possession. The above results directly from the content of Art. 176 of the Civil Code, according to which:

Art. 176. 

§ 1. If possession is transferred during the course of adverse possession, the current holder may add the period of possession of his predecessor to the time during which he owns it. However, if the previous holder obtained possession of the property in bad faith, the period of possession may be added only if, together with the period of possession of the current holder, it is at least thirty years.

§ 2. The above provisions shall apply mutatis mutandis in the event that the current holder is the heir of the previous holder.

Adverse possession of ownership of an apartment belonging to a minor

The second of the mentioned institutions is the extension of the period of adverse possession in the event that it runs against a minor - i.e. when the current owner of the property is not yet 18 years old.

Currently, parents often provide security for their children by purchasing residential premises for them, and minors often inherit apartments from their testators. In the event of adverse possession of an item belonging to a minor, it is necessary to pay attention to the content of Art. 173 of the Civil Code, according to which:

Adverse possession of ownership of an apartment belonging to a minor - provision of Art. 173. of the Civil Code

If the owner of the property against whom adverse possession is brought is a minor, adverse possession may not end earlier than two years after the owner becomes of age.

For example, if a given person acquires independent possession of a flat in good faith on August 16, 1995, which is then inherited in 2005 by Z (age: 12 months), the ownership right by adverse possession cannot be transferred to the new owner of the property earlier than 2024. If the general principles were adopted, this person would acquire the ownership of the apartment in 2015 - however, due to the existence of the above provision, this effect cannot, by operation of law, occur earlier than December 31, 2024, because only then will two years have passed since the minor owner became of age. .

The procedural side of adverse possession of an apartment - a case in court regarding adverse possession of real estate

Proceedings to establish adverse possession of real estate

As we have already indicated above, adverse possession of real estate occurs by operation of law, however, in order to regulate the legal status, the interested party should apply to the district court competent for the location of the apartment for a declaration of adverse possession of the ownership right. Such proceedings will usually be initiated by the sole proprietor, because a court decision declaring adverse possession of the property will entitle him to disclose his ownership in the appropriate registers - the sole possession of the apartment does not entitle him to disclose this status, e.g. in the land and mortgage register.

Proceedings to establish adverse possession are initiated upon request and the case is pending in the so-called non-litigious proceedings. When the court finds that the statutory conditions for adverse possession are met, it will issue a judgment declaring adverse possession of the property in favor of the new owner of the apartment. During the entire procedure, the applicant is obliged to prove that he or she actually, continuously had control of the apartment - this is possible by submitting among others. (1) paid utility bills, (2) photos of the premises over the years, (3) documents confirming expenditure on the apartment related, for example, to renovation.

How to prove adverse possession of an apartment?

Of course, the above - these are not the only possibilities of proving your case in court - any evidence that will prove that the sole owner has continuously owned the apartment and that this state of affairs lasted for the appropriate time required by law will be important in this case. All this would enable the court to issue a positive decision in the case of adverse possession of real estate (or a negative one - depending on who our client is :)

Is it possible to acquire possession of a condominium?

The title under which the owner of the property currently holds it does not matter much. What matters more is whether the person who wants to acquire possession of the property demonstrates other grounds for adverse possession of the property.

Is registration required for possession?

Check-in is definitely not everything. A person who wants to acquire possession of an apartment must prove many more circumstances. Although important in the evidentiary process, registration is not the only evidence here.

Possession in bad faith is not everything - how to defend yourself against adverse possession of real estate?

In cases of adverse possession of real estate, in order to prevent the ownership right from passing to a new buyer, we prove not only that the buyer obtained possession in bad faith, i.e. we thoroughly examine and question how he obtained possession, but also that those who want to acquire ownership of e.g. owns the property continuously. We also question whether he was the sole possessor and use many other arguments to prevent the court from finding adverse possession.

The extensive case law of the courts in this respect may be used to support the purchase of real estate or to state that the acquisition of ownership of the property (e.g. an apartment or a plot of land) has not taken place. Determining who owns the property is extremely important. Therefore, all circumstances raised in cases aimed at confirming the acquisition of real estate, i.e. determining whether ownership of the real estate has passed, are examined very carefully. We can only say that the ownership of the real estate has passed to the buyer after meeting the statutory conditions.

Very often it turns out that the lawsuit was filed by the owner of the property who is not its owner. Neither now nor in the future. Independent possession of real estate is something that must be thoroughly demonstrated.

The law firm specializes in matters of adverse possession of real estate

We are a law firm that specializes in broadly understood civil law, supporting its clients in matters related to changes in real estate ownership, including matters related to residential premises. We deal with matters related to adverse possession of real estate, problems with apartments purchased from developers, and resolving a number of disputes that have arisen or may arise in such factual situations. We handle cases throughout Poland. We offer professional legal services, representing you not only at the stage of settling the case amicably, but also during court proceedings. If you are interested, please contact our office. After the initial consultation (also online) and reviewing the necessary documents and information obtained from you, we will present our assessment of the case, a comprehensive action scenario and the benefits that can be achieved.


possession of an apartment - infographic


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