ACQUISITIVE PRESCRIPTION IN REAL ESTATE MATTERS

Acquisitive prescription in property matters

La acquisitive prescriptionalso known as usucapion, is a legal mechanism for acquiring ownership of a property through the passage of time, subject to certain conditions.

It is provided for in Article 2258 of the French Civil Code. It is based on the idea that prolonged and peaceful possession of a property can transform the possessor into its true owner.

What is acquisitive prescription?

Acquisitive prescription transforms a de facto situation into a de jure situation, in thatit allows the owner of a property to become its owner without having to obtain the agreement of the owner entered in the land registerprovided you meet certain criteria defined by law.

This institution is at the crossroads of property protection and legal certainty. It encourages the regularisation of situations of lasting possession.

What are the conditions of acquisitive prescription?

To benefit from acquisitive prescription, a number of cumulative conditions set out in the Civil Code must be met.

Firstly, the person requesting the benefit of this prescription must justify :

-orcontinuous possession,

-possession exercised constantly, without significant interruption.

Sporadic occupation or occupation interrupted by claims from the rightful owner excludes any acquisitive prescription.

In addition, possession must be peacefulfree from violence or conflict.

Possession must also be publicIn other words, the possessor must behave like a real owner in the eyes of everyone. This public possession rules out any form of secrecy.

In addition, it must be unequivocalThis means that it must not give rise to confusion as to the possessor's intention to act as owner.

Possession can only give rise to acquisitive prescription if it is exercised as owner. For example, a tenant or usufructuary cannot invoke acquisitive prescription, as their possession is recognised as that of a holder of derivative rights.

Finally, the length of possession required depends on the existence or otherwise of good title and the good faith of the possessor. In the case of possession in good faith and with a valid title, the period is reduced to ten years. In the absence of title or in good faith, the period is thirty years.

What is the procedure for recognising acquisitive prescription?

Acquisitive prescription is not automatic and must be legally recognised.

The possessor can apply to the court to obtain a judicial decision establishing that the property has been acquired by prescription. action in usucapion "This means that it is necessary to prove that all the conditions for prescription have been met.

In practice, evidence includes :

-. Evidence of continuous and public possession ;

-. Physical acts demonstrating the behaviour of an owner (payment of property taxes, works, etc.);

-. Any justification of good faith and/or title.

Once the court order has been obtained, the owner can register his or her right of ownership in the land register. This registration marks the official recognition of their right.

What are the effects of acquisitive prescription (Acquisitive prescription in property matters)?

Usucapion leads to retroactive transfer of ownership, which means that the possessor is considered to have been the owner since the beginning of possession.

This retroactive transfer can have significant repercussions, particularly on the rights of third parties, such as the creditors of the original owner.

In addition, the acquisitive prescription extinguishes the rights of the previous owner. The latter can no longer claim the property or claim compensation, unless the possessor acted in bad faith.

Law firm Bastia, Corsica