Acquiring prescription - this is one of the ways to obtain ownership of the property. It was enshrined in ancient Roman regulations and was called usucapio, that is, "acquisition as a result of use." Let us further consider the features of obtaining property by virtue of acquisitive prescription.
Civil law
By virtue of the Civil Code, acquisitive prescription is one of the legal grounds for obtaining ownership of a thing. In accordance with Article 234 of the Code, a legal entity or an individual who is not the titular owner of the property, but who openly, continuously and conscientiously uses it as his own, can get it into ownership. The legislation fixes the terms of acquisitive prescription. They vary depending on the type of property. So, for movable things, the period of acquisitive prescription is 5 years, for immovable things - 15.
Important point
Ownership by acquisitive prescription on things subject to state registration arises from the moment of its implementation. Prior to the formalization of the right, the entity that owns the property has the opportunity to protect its interests in case of encroachment on them by third parties who are not owners of this property.
A person who refers to the right of acquisitive prescription, may add to the time of ownership the entire period during which the thing was possessed by the person whose successor the person is.
The specifics of the flow of time
The countdown of the period of acquisitive prescription in respect of property held by the subject from the possession of which it may be claimed in the framework of a vindication claim does not begin before the expiration of the limitation period for such requirements.
The tenure will continue if the current owner is the successor to the previous owner. In this case, a number of conditions should be taken into account. Firstly, it is necessary that the ownership be actual, and secondly, the owner should not have a legal title (property rights, leases, etc.). Thirdly, the subject should not hide the fact of possession of the thing. Fourth, an important condition is the continuity of the use of property as one’s own. Only if all these conditions are met can we talk about acquisitive prescription for real estate or a movable thing.
Features of subjects and objects
In paragraph 1. 234th article of the Civil Code, the subject is defined by the word "person". At the same time, the same clause indicates that citizens and legal entities can obtain the right of ownership by virtue of acquisitive prescription. Therefore, the subjects of legal relations cannot be the Russian Federation, municipalities and regions of the Russian Federation.
Objects of acquisitive prescription are immovable and other things. The concept of the first is revealed in the 130th article of the Civil Code. According to the norm, real estate is called property, firmly connected with the land, water bodies, allotments. Acquiring prescription for a land plot, building, construction, including unfinished, the water fund facility is subject to state registration.
The subject of legal relations is also other property. Under the law, it means movable things. The Civil Code does not contain a closed list of such property. However, a number of limitations must be taken into account. The Civil Code provides a list of objects limited in circulation or withdrawn from it. They are not subject to acquisitive prescription. This, in particular, weapons, psychotropic, narcotic substances, ammunition, etc.
The legislation also establishes that some movable and immovable objects may be the property of only the Russian Federation. This, for example, is about radioactive materials, ships with nuclear facilities, and property of defense significance.
Ownership Features
Obtaining a property by acquisitive prescription is possible due to the emergence of a specific legal composition. Its key element is ownership. In turn, social recognition is recognized as its most important property. This means that the surrounding subjects can determine whether this object is in possession or not, and in the case of an affirmative answer to form an opinion about a specific owner. The basis of this judgment is a social assessment of various facts. The key of them is the purpose of the object. If the surrounding entities see that the property is in a position similar to that in which such objects are in the course of their normal, ordinary use for personal or public (including production) purposes, then they understand that the thing is in possession. In addition, the time and place of use are important. Based on their own experience, others can evaluate whether a similar object used for its intended purpose can be in a particular place at a given time.
You can also understand the attitude of a person to a thing. If it behaves in the same way as other subjects using similar objects, then the thing is considered to be in possession.
The distance between the property and the owner (spatial proximity of the object and the subject) is not critical. In practice, acquisitive prescription may also occur when an object is hundreds, thousands of kilometers away.
If we evaluate the use of property for personal or industrial purposes on a societal scale, then it is carried out by those entities that have any right to do so. In this regard, ownership, being a socially recognizable phenomenon, contributes to the identification of property. The surrounding subjects, realizing that a particular object is in the possession of a certain person, conclude that, most likely, it is an object of ownership. Consequently, the person using the thing is the owner. In this case, we can say that ownership is an external form of ownership.
Nuances
Of course, there are cases when property is used for its intended purpose by persons who do not have the rights of the owner. The result is a kind of gap between law and its identifiable visibility. In the structure of civil relations, this phenomenon cannot be called normal. To close this gap, acquisitive prescription was introduced. This institution is designed to protect the interests of owners who continuously, openly and conscientiously use property, treating it as their own.
Duration of ownership
The right of acquisitive prescription arises, as mentioned above, under a number of conditions.
The duration of ownership is named as the first in the law. One can speak of acquisitive prescription for real estate only after 15 years of continuous possession and use, for movable things after 5 years. The duration of ownership makes it legitimate (legal) in the eyes of the surrounding entities. At the same time, the potential acquirer may attach the terms. We are talking about cases when ownership began by one person, and then continued by another. The latter has the ability to attach to the period of his possession all the time during which the object was with another subject and transferred to the potential acquirer. It should be emphasized that this is a right, but not an obligation.
The flow of time according to the general rules starts from the moment the ownership arises. But an exception is made from this provision. In accordance with paragraph 4 of Article 234 of the Civil Code in respect of valuables held by entities from whose possession they can be removed by way of a vindication statement of claim, acquisitive prescription may arise no earlier than the expiration of the statute of limitations for such claims. The provisions of Art. 234 Civil Code extend their effect to situations when ownership began before 01/01/1995 and continued at the time of entry into force of Part 1 of the Civil Code.
Continuity of ownership
This is the second requirement set forth by law for entities that intend to apply the rules on acquisitive prescription on property. A subject can acquire ownership only if there are no breaks in ownership. If it then stops, then it resumes, the rules on acquisitive prescription will not apply.
Owning a thing as your own
This requirement is aimed, firstly, at preventing cases of acquiring property in things by persons working under an employment contract. Others do not consider that the objects used by such entities are their property. When a citizen or legal entity instructs employees to perform certain operations with things, it is the employer who owns them as his own.
The second important element of ownership is the lack of title. An entity possessing property on the right of lease, storage, economic management, etc., is not recognized as owning values.
Open ownership
It was said above that possession of a thing is a phenomenon available for identification by others. On the basis of this, the first paragraph of Article 234 of the Civil Code establishes that only open ownership acts as the basis for acquiring the owner's rights to a thing. In other words, others should be able to see how the subject uses the property. Consequently, concealment of ownership will be recognized as a violation of this condition. However, this requirement does not imply the obligation of the owner to inform others about the actions taken by him with the property.
Good faith ownership
This is the last requirement made by the 1st paragraph of the 234th article of the Civil Code. The norm states that the potential acquirer must be in good faith.
In the 1st paragraph of the 234th article of the Civil Code, the cases when the possession should be recognized in good faith, and when not, are not directly defined. The Code does not contain a general definition of the concept of “good faith”, although it is present in some articles. In each case, the content of this term has its own specifics.
When determining the essence of the concept used in the 1st paragraph of the 234th article, it is necessary to take into account that the norm refers to a legal entity or a citizen who is not the owner of the relevant values. Of course, an entity that cannot and does not know that it is not an owner is recognized as a bona fide owner. However, more interesting is the case when a person knows that he is not the owner of the property. To clarify this situation, you should refer to the provisions of the 4th paragraph of the 234th article of the Civil Code. It follows that the subject from whose possession the object can be claimed on the basis of the norms of 301 and 305 of the Civil Code, in fact, can obtain the rights of the owner. These articles are devoted to persons illegally owning other people's things. These persons cannot be excluded from the circle of potential acquirers. From the point of view of the provisions of Article 234, knowledge of the unlawfulness of possession does not preclude good faith. Simply put, an entity that knows that it owns property illegally is considered a bona fide owner.
There is, however, an exception to this rule. This is a case when illegal possession is a consequence of a violation of criminal law. A subject who has taken possession of a thing as a result of a crime cannot become a potential acquirer; accordingly, norms on acquisitive prescription do not apply to him.
In legal proceedings when considering cases of recognition of property rights, good faith of civil legal entities is assumed (presumably). This provision follows from paragraph 3 of Article 10 of the Civil Code. This norm speaks about integrity in general; presumption applies to all situations where the law indicates good faith. It is also applied when acquiring the rights of the owner by the prescription of ownership.
Protecting the interests of a potential acquirer
In the 2nd paragraph of the 234th article of the Civil Code, a guarantee is introduced for persons who own things as their own. Such protection has some limitations: it applies only to entities that are not owners, do not own the thing on other grounds, fixed by agreement or law.
Several rules have been introduced into domestic procedural law that ensure the protection of fair ownership in court. The agro-industrial complex stipulates that the arbitration tribunal has the right to consider disputes about the establishment of the fact of using and owning an IP or legal entity as movable property as its own. The Code of Civil Procedure provides that instances of general jurisdiction may conduct proceedings in cases involving the establishment of facts of use and ownership of real estate.
It should be said that movable objects can become property by prescription, if this does not contradict the provisions of Articles 230-231, 233, 226-228 of the Civil Code.
Explanations of the highest courts
Often real estate, which individual citizens own as their own, is difficult to arrange. It is very difficult in practice to prove that a person has been using property for a long time. Substantial assistance in the matter of evidence can be provided by the joint Decree of the Plenums of the Armed Forces and the Supreme Arbitration Court of 2010 No. 10/22. It explains the issues that arise in disputes relating to the protection of property rights and other property rights.
The Resolution contains an explanation of the 1st paragraph of the 234th article of the Civil Code. According to the act, long-term possession is recognized as bona fide if the subject, receiving the item, did not know and should not have known about the absence of grounds for the emergence of the rights of the owner. In other words, the citizen used the land, believing that he is his owner or has the ability to register it for himself. If the person knew that the allotment belongs to another citizen, but began to use it without permission, then possession, even if it is carried out for a long time, cannot be considered bona fide.
Possession of a thing as one’s own means non-contractual possession. In this regard, Article 234 of the Civil Code cannot be applied in cases where there are contractual obligations, i.e., a lease agreement, a storage agreement, gratuitous use, etc.
Conclusion
One of the most common cases of acquiring a thing in property can be called the transfer of real estate by the owner to another person without proper registration. For example, a citizen bought a house in the village, however, the deal was not fixed in writing, and accordingly, it did not pass state registration. The acquirer is sure that he bought the object and the plot, because he handed over the agreed amount to the former owner, who, in turn, gave the keys. In fact, the former owner remained the formal owner. In this case, you can apply the provisions of the Civil Code on acquisitive prescription.
In accordance with paragraph 2 of Article 234 of the Civil Code, persons who acquired property in connection with the prescription of possession have the right to protect their interests when third parties encroach on them who do not have legal rights to the thing. That is, the subject has the right to apply to the court with a statement on the recognition of rights to the relevant object. The former owner will act as the defendant. If he was not or should not have been known to the acquirer, a lawsuit is filed with the court to establish the fact of open, bona fide, continuous possession of the thing as its own for the period established by law. An interested person in such cases is the state registrar. It is worth saying that the lack of state registration of property rights will not be an obstacle to the recognition of ownership of property at the end of the statute of limitations.
The basis for entering information about the property in a single state register will be a court order to satisfy the requirements of the plaintiff, that is, recognition by the court of the right of ownership in connection with acquisitive prescription. You can also register property on the basis of a decision on the establishment of the fact of continuous, bona fide and open ownership of property.
It must be said that entering information into the unified state register on the basis of a court order will not prevent interested persons from challenging the state registration of rights.
Thus, the institution of acquisitive prescription is one of the most important institutions of civil law.The rules governing the prescription of ownership apply not only to property owned, but also to ownerless things. Any citizen has the right to formalize the rights to objects that he conscientiously, continuously and openly owns during the period established by law. Moreover, the provision of things for temporary use to other persons does not interrupt its course. To make things into ownership, a person will need to prove the fact of continuous, open and fair ownership.