Prescription of real estate - conditions and characteristics


Possibility to use the property as a good deed of the owner, or maybe to use it as the owner? In what case can we permanent the real estate that we occupy and manage? In the following article, we present what is prescription of real estate and what conditions must be met in order to prescription.

Prescription of real estate

The Civil Code clearly defines the prerequisites that are needed to usen a given property (Art. 172 of the Civil Code). There must be a certain period in the first place. In the case of good faith, it is 20 years, and in the case of bad faith - 30 years. The given periods apply to the possession of the property by the person who occupies the property. It is obligatory to have it in your possession as a spontaneous holder for a continuous period of 20 or 30 years.

A sole owner is a person who controls the property as the owner. It is important that there is a will to rule the thing as owner, and not the fact of having a legal title. "Self-possession may occur not only when the holder is convinced of his rights as the owner, but also when he knows that he is not the owner, but wants to own the thing and owns it as if he were the owner.”(Judgment of the Supreme Court of 7 July 2011, II CSK 644/10).

Example 1.

Mr. Andrzej has been holding the property for over 30 years, he has built a house on it and manages it like the owner. He thought it was a no man's land, and the land and mortgage register for her was lost during World War II. Nobody came for it, so Mr. Andrzej did not care about the legal situation. One day the original owners came forward and showed that they owned the land. In despair, Mr. Andrzej approached a lawyer who advised him to incur the property, as he has had it continuously for 30 years. Mr. Andrzej applied to the court for prescription of real estate. The court, on the basis of all the evidence, granted him the title to the real estate he had owned for over 30 years.

Supreme Court judgment of 28 February 2018 (II CSK 231/17)

The tax payment does not prove that the property is inherently owned, but it is a circumstance that should be analyzed together with all the facts that constitute the basis for the legal assessment of the nature of property ownership.

But when does the possessor's good faith and bad faith occur? The nature of faith, i.e. awareness or lack of it, will be examined by the court only if the person owning the property is an independent owner (judgment of the Supreme Court of May 15, 2020, IV CSK 615/19). In this regard, good faith is defined as the holder's ignorance of the person and existence of the actual owner of the property. In such a case, a 20-year period is sufficient for the possession of the real estate by the natural owner. In the event of bad faith, it is necessary to own the property for 30 years.Contrary to the case of good faith, bad faith is characterized by the knowledge of the owner or the ability to obtain knowledge about the property rights that are vested not by him but by another person (Supreme Court judgment of October 7, 2010, IV CSK 152/10).

Example 2.

Ms Joanna knew that part of the property belongs to a neighbor who left for the USA many years ago. At that time, Joanna decided that she would take care of this part and thus expand her garden. She used it for 20 years and after that time the owner came back. Ms Joanna wanted to prescribe the property, but the court did not agree to it because she knew who in fact owns part of the property, so in order to usecess the property, she would have to do it in bad faith, which requires 30 years of continuous possession of the property, and Mrs. Joanna owned it for 20 years.

In short, the conditions for usucapion of real estate are:

  1. real estate ownership:

    1. in good faith - continuously for 20 years,
    2. in bad faith - continuously for 30 years;
  1. possession of the property as the owner - spontaneous possession.

Protection of a minor and real estate prescription

A person who is an adult may sit down on the property, but it may happen that the owner of the property is a minor, i.e. one who is under the age of 18 and has not entered into marriage. In such a case, it is possible to usucapate the property, but it cannot end earlier than two years after reaching the age of majority (Art. 173 of the Civil Code).

It may happen, however, that the acquisitive prescription will affect a larger number of people. In a situation where a minor is one of the persons who have the right to acquisitive prescription, the period of acquisitive prescription by a minor does not affect the situation of the remaining adult co-owners and may prescribe their shares in the property regardless of the minor's protection period (judgment of the Supreme Court of Poland, no. July 7, 2011, II CSK 644/10).

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Does possession by the predecessor matter for usucaption of real estate?

The period of 20 or 30 years is often difficult to achieve, nevertheless the provisions of the Civil Code alleviate the situation of possession by an independent holder in the event of transfer of possession. In a situation where, during the period of acquisitive prescription, he transferred the right of possession to another person, it is possible to count the period of possession of the predecessor to acquisitive prescription by the successor of possession (Article 176 of the Civil Code). If owned in bad faith, the combined period of the predecessor and the current independent holder must be at least 30 years.

Example 3.

Mr. Joachim and his son owned a property on which someone had previously built a house. Not knowing enough about the owner, who reportedly died and had no relatives, they settled in a deserted house. After 10 years, Mr. Joachim died, leaving his son alone. He lived there for the next 20 years, until the probable cousin of the deceased owner came forward, who was the only relative inheriting the property. In this situation, Mr. Joachim's son applied to the court for prescription of the real estate because, together with the spontaneous possession by his father, he had owned the property continuously for 30 years (10 years for the father and 20 years for the son). The court, on the basis of evidence, granted the ownership of Mr. Joachim's son.

Legal basis

The Act of April 23, 1964 - Civil Code

Supreme Court judgment of 7 July 2011, case no. II CSK 644/10

Supreme Court judgment of February 28, 2018, II CSK 231/17

Supreme Court judgment of 15 May 2020, IV CSK 615/19

Supreme Court judgment of 7 October 2010, IV CSK 152/10