What is adverse possession of real estate?

adverse possession of real estate
Piotr Kłodziński|
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Adverse possession of real estate (including the right of antiquity) is one of the possibilities of acquiring property, regulated in book two of the Civil Code (CC) - ownership and other property rights. The provisions regarding adverse possession can be found in articles 172 – 176 of the Civil Code

This form is not a particularly popular form of acquiring property, which certainly involves the transfer of ownership, e.g. a sales contract. Usucaption, as the name itself may suggest, is the acquisition of property as a result of its permanent possession. To perform adverse possession, you must submit an application to the court for adverse possession, preferably with the help of a legal advisor, so as not to have to worry about formalities.

Adverse possession of real estate. When does this happen?

Down adverse possession of real estate most often occurs in cases of poor form of transfer of ownership. The transfer of ownership of real estate must take place in the form of a notarial deed, otherwise the act provides for its invalidity (Article 158 of the Civil Code in connection with Art. 73 §2 of the Civil Code), but there are still cases of, for example, the sale of real estate through an oral agreement, which cannot be later entered in the land and mortgage register of real estate and the sole owner of a given real estate is not able to check it, which is why he is mistakenly convinced that he can fully use the given real estate. Another situation in which adverse possession may occur may be the owner's lack of interest in the property, which will be discussed later in the context of adverse possession of real estate in bad faith.

Example: Marian B. and his neighbor Krzysztof R. concluded an oral agreement for the sale of land located between their plots for PLN 50,000. The money was transferred, but Marian B was still listed as the owner in the land and mortgage register. Only their wives knew about this fact. After his father's death, Marian B.'s son planted an orchard on the plot. After 20 years, the son of the late Krzysztof R. learned about the situation with the sale of the property, that the plot belonged to him under an oral agreement. After talking to a lawyer, Marian B.'s son filed an application to the court for adverse possession of a plot of land with an orchard, because he has been growing fruit trees there for 20 years, and when the prescription period began, he was in good faith because his father is the owner in the land and mortgage register. 

Real estate in the light of the provisions of the Civil Code (Article 46 of the Civil Code) they are land (parts of the earth's surface that constitute a separate subject of ownership), buildings permanently attached to the ground (the owner of the land is the owner of the building erected on it - this is the most common such case; a building erected on land granted for perpetual usufruct under Article 235 §2 of the Civil Code will not be such a building) and premises (parts of buildings permanently attached to the land, e.g. residential premises - apartment). The provision of Art. 461 The Civil Code also regulates agricultural property, which, however, I will not deal with in this article.

Legal definition adverse possession of real estate contains art. 172 §1 of the Civil Code - "the possessor 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." This is quite a comprehensive definition, but it seems to be not very understandable. 

Property and possession

Breaking this definition down into prime factors, we first have a "holder of real estate who is not its owner". This is a very important aspect of property law - ownership is not the same as possession, but not everyone realizes this.

Property (pour. proprietas) is a basic property right that entitles the owner to use the thing as widely as possible and to dispose of it to the exclusion of other people. In the Civil Code it is regulated in Art. 140. It is a law that is binding erga omnes – towards everyone, this means that no one may unlawfully violate the things that constitute my property (differently in the case of contracts that are binding inter partes – i.e. only the parties to this contract are obliged to comply with them). The owner has the right to maximum use of the property. Property rights come with many rights:

  • jus disponendi – the right to dispose of the thing to the exclusion of other people (as already mentioned). Disposition may be understood as transferring property (e.g. sale), encumbering it with another law (e.g. mortgage, pledge), or performing actions resulting in some obligations (e.g. renting, leasing), etc.;
  • jus possidendi – the right to own things (as discussed below);
  • jus fruendi – the right to collect its benefits. Benefits within the meaning of Art. 53 Civil Code - §1 natural fruits are (mainly) its fruits, e.g. apples in the owner's orchard; §2 - civil benefits are the income that a given thing brings, e.g. rent from a lease agreement. In short, benefits are the goods that a given thing brings, and the owner has a right to them;
  • jus abutendi – the right to actually possess the thing, e.g. to destroy it. However, all these rights do not mean the owner's absolute right to use the thing. The Civil Code limits them from the first article on ownership (i.e. from Article 140) - "within the limits set by statutes and principles of social coexistence, the owner may (...) use things in accordance with the socio-economic purpose of his right (...)". Exactly these fragments indicate that the owner cannot do exactly what he wants with his thing, but only so that it is within the limits of the law (e.g. he cannot use the thing to commit a crime) and the principles of social coexistence (e.g. prohibition of direct emissions - e.g. pouring feces onto a neighboring plot - and limitation of indirect emissions specified in Article 144 of the Civil Code - e.g. production of barbecue smoke that flies to the balcony above).

Possession (pour. possessio) is regulated in Polish law by articles 336 of the Civil Code to 352 of the Civil Code - it is the actual possession of the thing. There are two types of possession:

  • spontaneous possession (Article 336, sentence 1) – actual possession of the thing as the owner. According to the judgment of the Supreme Court of August 8, 2012. about ref. no. I CSK 387/12, spontaneous possession is "exercising actual control over an item combined with the will to maintain this control and continuity of ownership." This condition of adverse possession is absolutely necessary to acquire ownership, which is also emphasized by the Supreme Court in the above judgment;
  • dependent possession - actual possession of an item for someone else (in Article 336, sentence 2 of the Civil Code: "as a usufructuary, pledgee, tenant, tenant, or having another right that entails ownership over another person's item").

Possession is associated with two concepts that are inherent in determining its existence, and these are:

  • corpus – it is connected with the actual possession of the thing – the person physically "holds it in his hand";
  • animus – the intention to possess the thing for oneself (its absence means tenancy under Article 338 of the Civil Code – not to be confused with lease; the tenant will be, for example, the custodian of the thing).

Property is a much broader right than possession, very often ownership absorbs possession - an example may be the use of a telephone that you have bought yourself (the sales contract transfers ownership to the buyer), and the use of it can only be fulfilled by possessing this telephone (actually having it while yourself).

The owner is not always the owner. You can also, for example, rent your property - renting a phone to someone for a week does not mean that if you do not have it with you, the person ceases to be the owner, because they still have the rights to it - to collect benefits, i.e. rent in this case.

Lease agreement phone constitutes jus disponendi. For this reason, it is profitable for long-term owners to acquire possession of the property and, as a result, acquire ownership. As a result, a given person will receive many more benefits and broader protection of property than protection of possession.

You can see why, in order to become the owner of real estate through adverse possession, you have to own it for a long time and what is the difference between possession and ownership. You also have to be an independent owner, which has already been explained, i.e. wield this thing as an owner, for your own use. This means that in no case will the dependent possessor (tenant) ever be able to obtain adverse possession of the property.

Adverse possession of real estate. Duration

It has already been explained above that in order to acquire an item by usucaption, it must be possessed on its own for a long time. The Civil Code, of course, clearly indicates how long the period of adverse possession lasts. If this were not the case, it could last indefinitely and ultimately the interested person would never acquire this property - in other words: without the deadlines specified in the Act, there would be no institution of adverse possession. So – what are the deadlines for adverse possession in Polish law? It is not easy to establish this in reality, because the court must examine all the evidence itself and determine whether the plaintiff is in the case good Whether bad faith.

Good faith – 20 years: owner of the property, located in good faith, may apply to acquire ownership of the property after the expiry Twenty years its spontaneous possession (Article 172 §1 of the Civil Code). What does this "good faith" mean? This was best presented by the Supreme Court in its decision of July 2, 2015. about ref. no. V CSK 625/14 - "good faith is the false but justified belief of the property owner that he is entitled to the right exercised by him." In other words, the owner of the real estate did not know that the given property did not belong to him and took full care to find out about it (e.g. the change of owner was not recorded in the land and mortgage register due to an error of the office, and the owner of the real estate he could not find out about it for just cause). There is a presumption of good faith of the owner of real estate, which may be rebutted by any person with a legal interest in it. This is due to Art. 7 of the Civil Code, which clearly indicates that if legal consequences depend on good or bad faith, the existence of good faith is presumed.

Example: Mariusz M. has been regularly using a summer plot located on Lake Zegrze, which had access to water, for 27 years. Every weekend he came to fish. He considered himself the owner of this plot, he performed all necessary work to keep the property in the best possible condition - he mowed the grass, cut bushes, planted more. This plot was supposed to belong to his father, who died 27 years ago. However, he did not know that the father was using this plot "wildly" without an ownership title. However, together, long before their father's death, they put a caravan and a fence on it and built a small pier by the shore. Mariusz M. wanted to sell the plot, went to a real estate agent and only there he found out that the plot did not belong to him, but to Roman M., his father's close cousin, who had not been interested in the property all these years. Mariusz M. filed an application to the court for adverse possession of the plot by possessing it in good faith for 27 years. 

Bad faith – 30 years: the holder of the property acquires ownership of the property after expiry 30 years, even if he was in bad faith (Article 172 §2 of the Civil Code). A person in bad faith is one who knows that a given property does not belong to him and has no rights to it, and yet uses it as an independent owner. The legislator agrees to this possibility because he believes that the owner should be interested in his real estate and it is he who should interrupt the adverse possession period.

If the owner has not done anything about the actual situation within 30 years to be able to regain the right to own the property, it can be assumed that he simply does not want to change it and wants to get rid of the property itself. According to the decision of the Supreme Court of March 14, 2017. about ref. no. II CSK 463/16 "he who exercises a right to which he knows he is not entitled is not in good faith, but also he who is not aware of such a right, provided that, with due diligence, he could find out about the actual legal status of a given situation."

Therefore, in order to be in good faith, it is not enough just not to be aware that a given property is not owned by the interested person, but it also needs to be checked - that is, due diligence should be exercised, e.g. by checking the land and mortgage register. A solicitor can help you with this to ensure that everything has been carefully considered.

Example: Dariusz P. used the plot of his neighbor Marcin K., which was a meadow and was not a building plot due to poor terrain. Dariusz P. grazed his cows there and treated this property almost as his property. He planted several apple trees there and collected hay in the summer. He knew that it was not his property, but he treated it as his own, especially since Marcin K. was not interested in the plot because, according to him, it was wasteland. After 30 years, Dariusz P. filed an application to the court for adverse possession of the property.

In art. 176 of the Civil Code still regulates the issue of transfer of possession. Well, the new owner of the thing may add the period of possession of the predecessor to his period of adverse possession. However, if the predecessor acquired possession in bad faith, his time together with the time of the current holder can be added together only if it amounts to at least 30 years. This provision also applies to the heirs of the previous holder.

The period of adverse possession also differs when the owner of the property against whom the period of adverse possession runs is a minor (Article 173 of the Civil Code). The usucaption cannot end earlier than two years after the owner reaches the age of majority (which means that under Polish law the owner must be at least 20 years old in order for the holder to be able to acquire the property by adverse possession). This is due to their protection, because minors most often do not know their rights, are not aware of them and no one can expect them to do so. Such a person also does not have full legal capacity and cannot appear in court without a legal representative. She cannot decide about her own property. 

It is the court's responsibility to examine good faith. After the specified time has elapsed, the interested person must provide detailed evidence proving the expiry of the necessary period of adverse possession and the possibility of carrying out this activity. It is also important to the course of adverse possession was not interrupted (Article 123 of the Civil Code in connection with Art. 175 of the Civil Code), e.g. by taking legal action by the owner of the property against its sole owners (rei vindicatio – debt collection complaint for the restoration of actual control over the item under Art. 222 §1 of the Civil Code). In such a case, after the end of the case in court, the limitation period will not run at all or will start running again.

Example: Agnieszka A. used the plot of her neighbor Monika B. for 10 years. She planted flowers there and tended the garden. Monika B. finally filed a lawsuit against her for the return of possession of the plot, and at that moment the adverse possession period was interrupted. If Agnieszka would like to restart the adverse possession period, these 10 years will not be added to this period.

Will a specific belief have to last throughout the entire period of adverse possession? Many Supreme Court decisions indicate that no, a faith is determined at the moment of acquiring spontaneous possession (starting the course of adverse possession).

Here are some of them: decision of the Supreme Court of July 2, 2015. about ref. no. V CSK 625/14 "in a case of adverse possession, the decisive moment for assessing the good or bad faith of an independent owner of real estate is the moment of obtaining possession of the real estate. Subsequent changes in the holder's awareness do not affect this assessment and, consequently, the length of the possession period necessary to acquire ownership by adverse possession, which is confirmed by the grammatical interpretation of Art. 172 § 1 of the Civil Code, in which the law places emphasis on the moment of obtaining possession"; judgment of the Supreme Court of November 14, 2013 about ref. no. II CNP 15/13 "In order to assess the good or bad faith of the holder, what counts is the moment of taking possession of the property, especially when he applies for adverse possession of the property, and the subsequent bad faith of the holder, even if there were grounds for it, is no longer relevant"; judgment of the Supreme Court of January 5, 2011. about ref. no. III CSK 72/10 "The state of consciousness at the time of taking over the property determines whether the property is owned in bad faith or in good faith." The doctrine is therefore consistent - good or bad faith at the moment of acquiring spontaneous possession affects the entire period of adverse possession.

Example: Ewelina J. and her husband bought a plot of land in Tczew. They surrounded the plot with a fence, in accordance with the plot plan prepared by a surveyor, and built a large garden at the back of the house. After 10 years, they decided that instead of a garden, they would build a tennis court at the back and start a business. At the office it turned out that the garden did not belong to them, the surveyor had made a mistake, and the owner was Radosław B. Ewelina J. asked the owner of a part of the plot to sell it. However, Radosław B. did not answer, it turned out that he had not been living in Poland for a long time, but he had not changed his registration. When another 10 years had passed, without any response from Radosław B., they decided to file an application to the court for adverse possession of the plot on the basis of its spontaneous possession for 20 years, starting the period of adverse possession in good faith (due to the surveyor's error).

Usucaption of the right of perpetual usufruct

Perpetual usufruct right is the right of use by natural and legal persons of certain lands of the State Treasury or local government units and their associations (Article 232 of the Civil Code). They are established by applying appropriate provisions on the transfer of ownership (usually by way of an agreement - a notarial deed; Article 234 of the Civil Code).

Perpetual usufruct is established for a period of 40 to 99 years with the possibility of extension for a further period of 40 to 99 years (Article 236 of the Civil Code). The buildings and other facilities that the perpetual usufructuary erected on this land constitute his property, but this right is related to the perpetual right, which means that after the end of the perpetual usufruct, the ownership right also expires (Article 235 of the Civil Code).

This right can be acquired by prescription. It is directed only against the perpetual usufructuary, not the land owner. Also, only a law that has already been established, and not a future law, can be usufructed. In order to acquire them by prescription, the interested person must use the subject of perpetual usufruct as a perpetual usufructuary and a period of 20 or 30 years must have passed (depending on whether he or she began the usufruct in good or bad faith). By adverse possession of perpetual usufruct, you can also acquire ownership rights to buildings constructed on land granted for perpetual usufruct.

Example: Halina G. had a sister, Anna G., who was a perpetual usufructuary of land located in Swarzędz. The agreement was signed for a period of 99 years. After 15 years, she went to work in Germany and gave the land and the building she built to her sister. Anna G. used the property as a perpetual usufructuary, and after 30 years, she filed a lawsuit against Halina G. for adverse possession of perpetual usufruct and ownership rights to the building.

It is also possible to acquire ownership rights to real estate that has been granted perpetual usufruct to a third party - resolution of the Supreme Court of December 9, 2016, ref. no. III CZP 57/16; decision of the Supreme Court of May 30, 2017. about ref. no. IV CSK 414/15 "an independent owner of real estate put into perpetual usufruct may acquire its ownership by adverse possession." This means that if a person uses real estate as an independent owner for the necessary period of time and which someone else uses in perpetuity, his/her ownership may be acquired by usucaption.

Adverse possession of real estate is one of the ways of acquiring property. If you believe that you have the right to acquire the property by prescription, you meet the conditions for this, but you are not sure how to do it, it is worth going to the office of a legal advisor, most often matters are not as simple as they seem.

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