Acquisition of property rights by prescription

1. Nature
Prescription is a means of acquiring subjective property rights by their actual exercise over a period of time by a person who does not possess the respective right. Similar to limitation, prescription leads to synchronising the legal and factual situation and increasing the security in turnover. Prescription is a primary acquisition basis. Only subjective property rights may be acquired by prescription. Any propety right may be acquired by prescription, with the exception of negative easements. As for the objects, there are certain limitations that apply to acquisition by prescription, such restrictions are established by the legislature with mandatory legislation. The following may not be acquired by prescription:

  • Property that is owned by the state and municipalities;
  • Land belonging to the state land fund - Art. 24 (7) of the Management and Use of Agricultural Land Act;
  • Forest areas, state and municipal property - Art. 26 FA;
  • Pension funds assets - Art. 136 of the Social Security Code;
  • Rights to undivided parts may be acquired, but not on the real parts of the plot of land or premises, if they cannot be distinguished as a separate object or joined to neighboring property - Art. 200 of the Spatial Planning Act.

The following restrictions apply to the individuals acquiring by prescription:

  • Anyone who acquired property through a criminal offence may not acquire by prescription;
  • No prescription runs in favor of the person with an ownership title - e.g., the buyer before the termination of the contract.

2. The factuality of the prescription covers possession, which lasted specified period.
2. 1. Possession
Possession must be established, in order to fulfil the factuality of the prescription. Moreover, the possession must be continuous, and it is considered to be interrupted when lost for more than six months. In order not to interrupt possession, it is necessary to bring a possessory action within the said time period. When the period is interrupted, possession is also interrupted as per Art. 81 PA. Proof of continuity of possession is facilitated by the presumption of Art. 83 PA, according to which if the possessor proves that they were in possession during different periods, they supposedly were also in possession in between those periods. Hence we conclude that it is sufficient to establish that possession existed at the start of the limitation period and its presence at the end of the term.

2.2. Term
The term of prescription for movables is 5 years. For immovable property the term of the prescription depends on the type of possession - 5 years for bona fide possession and 10 for mala fide possession. According to the provisions of the Water Act, the term for acquisition by prescription is 10 years.

According to Art. 82 PA, "the possessor may incorporate the possession of the transferor with his own possession." The number of previous possessions, whose terms can be combined, is unlimited. This combination is effected consecutively to each previous possession. The law requires succession, i.e. the transfer must have a legal basis. In the case of general succession - upon inheritance, the type of possession is maintained if the heir continues it. In the case of private succession - i.e. a transaction or other legal fact, it is possible for the possession of the transferor and the transferee to be a different kind. If so, a 10-year prescription is necessary. There is also a case of the so-called fictional succession, which occurs in cases of termination of the contract - if the transferor recovers their possession, its duration is also combined with the duration of the transferee.

The provisions of the Obligations and Contracts Act apply to the suspension and termination of the prescription.
The starting point of prescription is the moment when the possession was established. But under the conditions provided by law the prescription shall be suspended. Suspension of the prescription is not related to the cessation of possession. It continues, prescription as time period is suspended, but the elapsed time is saved and can be combined with the time elapsed after the circumstances which caused the cessation lapse. Example of suspended prescription: no prescription runs during petition claims until the process is completed.       

Interruption of acquisitive prescription
This is the act of cancellation of the operation of an expired prescription until such circumstances occur as provided by law, after which a new prescription begins, not counted together with the expired prescription. Not any interruption of prescription leads to interruption of possession. An example of interruption of prescription: loss of possession for more than six months or enforcement of a court decision in a petition claim. Prescription is interrupted by executive action, as with the entry into force of the decision begins a new prescription. By bringing a petition claim for the right of ownership, prescription is interrupted against the possessor. If the claim is unsuccessful, after the entry into force of the decision begins a new prescription.

3. Operation of expired acquired prescription
Upon expiration of certain statutory limitation period, a possessor can acquire the right they have actually exercised. This acquisition has primary character because it does not stem from the right of the previous owner. There is no transfer of rights between them and the new owner. The new owner obtains rights through adverse possession. Upon expiration of prescription, the grounds for possession are also amended.  The new owner can now defend not only possessory claims, but also petition claims, they already have a right of possession as part of their right of ownership. It is important to note that property is not acquired free from encumbrances, i.e. acquisition by prescription does not terminate the limited property rights over another's property. It is necessary for the possessor, in favor of whom the prescription has expired, to refer to it with an explicit act. This can be done with an objection or request to obtain the deed under a circumstantial inspection under Art. 587 CPC, as well as a declaration under Art. 124 (1) CPC, when property rights are threatened or challenged. Prescription produces future action. Since the reference is part of the actual composition of the prescription, it should be considered that the right of ownership is acquired not at the time possession was established, nor upon expiration of the statutory period, but from the moment the expired prescription has been referred.

This is an argument to the contrary when interpreting Art. 113 OCA in conjunction with Art. 84 of the Act. If the renunciation of prescription before it has expired is invalid,  the renunciation of the expired limitation should be admissible. Renunciation of acquisitive prescription can be carried out until the right of ownership is acquired.