Acquiring ownership of a flat doesn't solely have to involve purchasing it from a developer or on the secondary market. It's also possible to acquire ownership in an original way, through the institution of adverse possession, with the crucial condition that the flat must have an established land and mortgage register.

The new owner does not become the owner after the court issues a judgment; they are the owner by operation of law, which is why we speak of the court establishing possession by prescription. However, it is always necessary to prove continuous possession and the passage of time.

Acquisition of ownership of a flat through adverse possession – how to acquire ownership and what conditions must be met?

This article explains the principles governing the acquisition of ownership through long possession (zasiedzenie), the conditions that must be met to acquire ownership of a residential property through long possession, and how much time must pass for such acquisition to occur.

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

Acquisition by prescription is one example of the legislator using so-called prescription, and therefore linking the passage of time with certain negative consequences in the sphere of rights and obligations. The sole negative consequence is the definitive loss of ownership by one person correlated with its acquisition by another entity.

The subject of acquisition by prescription can be both real estate and movable property. The institution of acquisition by prescription is governed by the provisions of the Civil Code (Articles 172-176 of the Civil Code). Pursuant to Article 172 § 1 of the Civil Code: 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)..

Who can apply for usucaption? A possessor in good faith

This is a person who actually controls a thing as if they were the owner, but does not possess the legal right of ownership in relation to that thing. Possession consists of two elements: corpus (actual possession, e.g. occupancy, renovations) and animus (The will to own, the sense of ownership, paying taxes). The owner should be distinguished from the autonomous possessor, who merely occupies the flat and considers themselves the owner.

Good and bad faith in the adverse possession of a flat

Good faith

Good faith is understood as an erroneous, yet circumstances-justified, belief that a given person has a specific right. This concerns a situation where a person is unaware that someone else is the owner. The interested party must exercise due diligence, meaning they must ascertain the factual situation. In law, there is a presumption of good faith (Art. 7 of the Civil Code), which means that until bad faith is proven, good faith of the possessor is assumed.

Bad faith

He is acting in bad faith who knows that he is not entitled to this right, or who, although he is not aware of it, his ignorance is not justified in light of the circumstances of the given case. An example of this can be the situation where a tenant stops paying rent, coming to the (unjustified) conviction that he has become the owner. The consequence of bad faith is the extension of the required period of adverse possession from 20 to 30 years.

Adverse possession without a notarial deed

In the case law of the Supreme Court, a view has been established (resolution III CZP 108/91) that a person who has taken possession of real estate under an agreement aimed at transferring ownership, concluded without observing the notarial deed form, is not as the sole good faith possessor. It therefore requires 30 years of possession.

Grounds for acquisitive prescription – uninterrupted possession

For ownership to pass to a new person, two conditions must be met jointly:

1. Uninterrupted adverse possession of immovable property;
2. Statute of limitations – 20 years (good faith) or 30 years (bad faith).

We speak of uninterrupted possession when the possessor exercises control over it continuously (transient obstacles do not interrupt this state). There is a legal presumption of continuity of possession (Article 340 of the Civil Code).

How many years must pass for ownership to transfer to the acquirer?

Possession must be continuous and uninterrupted for 20 or 30 years. Prescription occurs by operation of law at the moment this period elapses, without the need to obtain a court order at that time (a court ruling merely confirms this).

How to calculate the period of acquisition by prescription and the inclusion of the predecessor's time

The term for acquisitive prescription is counted from the day of acquiring autonomous possession. In accordance with Article 118 in conjunction with Article 175 of the Civil Code, the term is extended to the end of the calendar year. Therefore, if possession began on March 3, 2001, acquisitive prescription in good faith will expire on December 31, 2021.

Addition of the predecessor's possession

In accordance with Article 176 of the Civil Code, the current possessor may add to the period for which they themselves have possessed the time of possession of their predecessor (e.g. an ancestor). If the predecessor obtained possession in bad faith, the total period must be 30 years.

Adverse possession of ownership of an apartment belonging to a minor

In accordance with Article 173 of the Civil Code, if the owner of immovable property is a minor, acquisitive prescription cannot be completed earlier than two years after the owner reaches the age of majority. This provision protects the interests of persons under 18 years of age, preventing them from losing ownership before they gain full legal capacity and time to react.

Procedural aspects of acquiring an apartment by prescription - court case

Acquisition by prescription occurs by operation of law, however, for the purpose of regulating the legal status (e.g. entering details in the land register), the possessor applies to the District Court with a motion to confirm acquisition by prescription. The case is conducted in non-contentious proceedings. The applicant must prove possession and its duration. Evidence may include paid utility bills, agreements, witness statements, and proof of renovations.

Aby bronić się przed zasiedzeniem nieruchomości, możesz podjąć następujące kroki: * **Dowiedzieć się, kto faktycznie posiada nieruchomość:** Regularnie odwiedzaj swoją nieruchomość i upewnij się, że nikt inny z niej nie korzysta. * **Zawrzeć umowę dzierżawy lub użyczenia:** Jeśli chcesz udostępnić nieruchomość komuś innemu (np. członkowi rodziny), zawrzyj formalną umowę, która określi warunki użytkowania i jasno zaznaczy, że nie jest to posiadanie w złej wierze. * **Pamiętać o terminach zasiedzenia:** Zasiedzenie może nastąpić po 20 latach posiadania w dobrej wierze lub po 30 latach posiadania w złej wierze. Kluczowe jest, aby właściciel nieruchomości nie dopuścił do upływu tych terminów poprzez swoje działania. * **Podjąć działania prawne przeciwko osobie posiadającej nieruchomość:** Jeśli dowiedziałeś się, że ktoś bezprawnie zajął Twoją nieruchomość, możesz złożyć pozew o jej odzyskanie. Pamiętaj, że takie postępowanie może przerwać bieg terminu zasiedzenia. * **Konsultacja z prawnikiem:** W celu uzyskania szczegółowych porad i pomocy w konkretnej sytuacji, zawsze warto skonsultować się z prawnikiem specjalizującym się w prawie nieruchomości.

To prevent the acquisition of ownership by prescription, the rightful owner (or a person disputing prescription) can demonstrate that the applicant was not an independent possessor (e.g., they were merely a tenant) or that the continuity of possession was interrupted. Often, in such proceedings, bad faith is also proven to enforce the 30-year requirement (which, for example, may not have elapsed yet). Each of these circumstances must be thoroughly examined by the court.