Ownership rights may also arise through acquisition by prescription of real estate or parts thereof.
Before we consider whether it is possible for one co-owner to acquire by prescription an ideal share of the property from another co-owner, we need to clarify a few concepts.
What do the terms “ownership” and “co-ownership” mean, and what is their meaning?
The right of ownership grants its holder the following powers: 1. to possess the item or property; 2. to use the item or property; 3. to dispose of the item or property.
It is possible that the owner of a given item does not exercise all of his or her powers continuously. He or she may grant the use or possession of the property to another person, thus retaining only the right to dispose of it.
The right of ownership gives rise to an obligation for all other persons to refrain from actions that prevent the owner from exercising their powers as described above. There are cases, however, in which the right of ownership is limited. Such are the cases in which other persons have rights over the same thing, as is the case, for example, with co-ownership.
Joint ownership exists when two or more persons have ownership rights over a given item or property. It may arise through inheritance, purchase and sale by several persons, or marital property community. There may be several co-owners who have acquired ownership on different grounds.
According to the Property Act, each co-owner may use the common property in accordance with its purpose and in a manner that does not prevent other co-owners from using it in accordance with their rights. Therefore, each co-owner has the right to possess, use, and dispose of their share of the property. However, what happens when only one co-owner possesses and uses the common property will be clarified below in this article, starting with an explanation of acquisitive prescription as a means of acquiring ownership rights, as well as possession as a power of the owner, on the basis of which acquisition by prescription can be realized.
What is the procedure for acquiring property by prescription?
The answer to this question is again contained in the Property Act, according to which acquisition of real estate by prescription occurs through continuous possession for a period of 10 years.
Therefore, in order to acquire property by prescription, the following conditions must be met:
- exercising possession over the property;
- ownership must be continuous – it must not be lost for a period longer than 6 months;
- the expiration of a specified period – 10 years.
Possession, on the other hand, is the exercise of actual control over the item that the person holds as their own. Therefore, there are two elements of possession, and if either of them is missing, possession no longer exists. These are: exercising actual control, or in other words, holding the item, and the intention to appropriate it, i.e., the person holding the item must do so for themselves. It is precisely the intention of the person that is key to acquisition by prescription.
Due to the difficulty of proving intent to appropriate, the law establishes a rebuttable presumption that assumes intent to appropriate until proven otherwise. According to the Property Act, it is presumed that the owner holds the property as his own until it is proven that he holds it for someone else. Therefore, it is sufficient to prove the exercise of actual power, as the intent is presumed.
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Is it possible to acquire by prescription an ideal share of property from a co-owner?
The answer to this question is affirmative. The possibility of acquiring by prescription an ideal part of property is not expressly provided for in legislation, but judicial practice categorically admits it.
The following situation often occurs in practice: spouses own two properties and decide to transfer them to their two children. They transfer one of the properties to one child and continue to live in the other with a verbal agreement that after their death, the other child will receive it. However, according to our legislation, after their death, both of their children are heirs to the property and therefore become co-owners of ½ of it. Knowing about the verbal agreement they had with their parents, one heir lives in the property that was transferred to them during their lifetime, and the other lives in the inherited property.
At some point, however, the heirs of the person to whom the property was transferred begin to assert claims to the inherited property, since under our legislation they own ideal shares of it. How can the heir, or rather his heirs, against whom the claims have been made and who have lived in the property all their lives and managed it as their own, defend themselves? The answer is precisely by referring to the fact that there has been acquisition of the property by prescription.
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Prerequisites for acquisition by prescription of an ideal share in a jointly owned property
On the one hand one side, the prerequisites are the same as in the case of acquisition by prescription of any property. These are: the exercise of possession over the property, which must be continuous and must have lasted for a specified period /10 years/.
The difference stems from the fact that it must be proven that the possessing co-owner possesses the entire property, and not just the ideal share that he owns, i.e., he must have repelled the possession of the other co-owner or co-owners. This circumstance is extremely difficult to prove, as witness testimony is often insufficient. In the given example, the notarial deed transferring one property to one heir could be presented, and the parents’ will could be inferred from it.
As explained above, possession has two elements: exercising actual control and the intention to appropriate. The intention is presumed until proven otherwise. However, according to case law, this presumption does not apply to the inheritance of property.
Therefore, the prerequisites for acquiring an ideal share of property by prescription are as follows:
- exercise of continuous possession for a period of not less than 10 years;
- rejection of the claims of the other co-owners.
What is the procedure for invoking the fact that the ideal part of the property has been acquired by prescription?
The ways in which a co-owner can realize their claims for acquiring ideal shares of the property are as follows:
By obtaining a notarial deed of ownership based on a circumstantial check – the deed is obtained by a notary who reviews the available documents, interviews persons indicated by the co-owner, and issues the requested notarial deed.
By filing a claim in court – in this case, the other co-owner or co-owners are also summoned. A court case is initiated, in which the possessing co-owner must prove that all the conditions for acquisition by prescription are met.
By filing an objection in a case brought against him, the non-possessing co-owner may bring an action for partition, for transfer of possession, or for compensation for sole use of the common property. In all these cases, the co-owner in possession may object that he has acquired the ideal share of the non-possessing co-owner by prescription, if the conditions for this are met.
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In conclusion
It can be assumed that the institution of acquisitive prescription has sparse legislative regulation and numerous, diverse, and contradictory practices, but nevertheless, the co-owner in possession has a number of means at his disposal to protect the acquired right of ownership, and the choice of the means of protection is of particular importance.
Given the diverse nature of relationships, it is extremely important to consult with a specialist beforehand.
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You can find more interesting topics related to real estate situations in the section “Property Law“.
Silvia Petkova Sole Proprietorship Law Firm provides specialized legal assistance in connection with the acquisition of real estate, challenging property transfer agreements, and legal representation in property disputes.
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