Property law is a branch of law that deals with issues related to ownership rights over movable propertys and real estates, the transfer of property rights, methods of acquisition, protection of property, and the termination of property rights.
Acquiring Ownership Rights
The Law on the Basics of Property Relations stipulates that property can be acquired in the following ways:
- By law (creation of a new thing, merging, mixing, building on someone else’s land, separating fruits, possession, acquiring ownership from a non-owner, occupation);
- Based on a legal transaction (entering into a contract of sale; contract of lifelong maintenance; gift agreement; exchange contract, etc.);
- By inheritance (by a decision of inheritance issued by the competent court or notary);
- By a decision of a state authority (by a public bailiff’s conclusion granting ownership of movable or immovable property; restitution, etc.).
The most common method of acquiring ownership rights is through legal transactions.
Acquiring Ownership Rights through Construction on Someone Else's Land
A person who build a building or another construction (a building object) on land owned by someone else (the builder) acquires ownership rights over the land on which the building was constructed, as well as the land necessary for the regular use of the construction, if they did not know, nor could they know, that they were building on someone else’s land, and the landowner knew about the construction and did not object immediately. The landowner has the right to request compensation for the value of the land in the amount of its market price at the time of the court decision within three years of learning about the completed construction, but no later than ten years after the construction.
The conditions for acquiring ownership rights in this way are the good faith of the acquirer and the passivity of the landowner.
If the builder knew they were building on someone else’s land, or if they didn’t know and the landowner objected immediately, the landowner can request ownership rights to the construction or demand the builder demolish the building and return the land to its original state or compensate them with the market price of the land. In this case, the landowner is also entitled to compensation for damages.
If the landowner requests ownership rights to the building, they must compensate the builder for the value of the building according to the average construction price of the building in the area where it is located at the time of the court decision. The landowner may utilized his right to choose within three years from the completion of the building’s construction. After this period, landowner can request compensation for the market price of the land.
If the builder is diligent, but the landowner was unaware of the construction, and in a situation where the building is worth much more than the land, the building along with the land belongs to the builder, and the builder owes the landowner compensation based on the market price of the land. If the value of the land is significantly higher, the court will, at the request of the landowner, award the building to the landowner and obligate them to compensate the builder for the construction value based on the average construction price of the building in the area where it is located. This request can be filed within three years of the completion of the construction.
If the builder is diligent but the landowner was unaware of the construction, and if the values of the building and the land are approximately equal, the court will award the building or both the building and the land to the landowner or the builder, depending on their needs, especially their living conditions. The landowner or builder will be entitled to compensation for the land or the building.
Ownership Rights Over Fruits
Ownership of fruits produced by a thing belongs to the owner of the thing. A diligent holder, usufructuary, and tenant of a thing that produces fruits acquire ownership of the fruits at the moment of their separation.
Fruits, until their separation, are an integral part of the thing and belong to its owner.
Adverse Possession
Adverse possession is a specific way of acquiring ownership rights within property law. The institution of adverse possession is based on the assumption that the actual owner of a thing is not interested in using or disposing of it, while another person holds and uses the thing for a certain period. The key condition for the application of this institution is the good faith of the holder. Therefore, a diligent holder cannot be someone who knows or should know according to the ordinary course of events that they are not the owner, i.e., that the owner is someone else. Depending on whether the holder has a legal basis to hold the thing, we can distinguish between regular and extraordinary adverse possession.
A diligent and lawful holder of a movable property, on which another has ownership, acquires ownership of the property after three years of possession (regular adverse possession).
A diligent and lawful holder of an immovable property ( real estate ), on which another has ownership, acquires ownership after ten years of possession (regular adverse possession).
A diligent holder of a movable property, on which another has ownership, acquires ownership after ten years of possession (extraordinary adverse possession).A diligent holder of an immovable property ( real estate ), on which another has ownership, acquires ownership after 20 years of possession (extraordinary adverse possession).
The time required for possession begins the day the holder takes possession of the thing and ends on the last day of the possession period. The time for possession includes the time during which the predecessors of the current holder held the thing as diligent and lawful holders or as diligent holders.
Acquisition from a Non-Owner
Acquisition from a non-owner is a legal institution under which a person can acquire ownership of a thing from someone who is not its owner, but under certain conditions. This institution is based on the good faith of the acquirer, i.e., their diligence when acquiring property.
The basic conditions for acquiring ownership from a non-owner are:
- Good faith of the acquirer – The acquirer must be convinced that the transferor (non-owner) is truly authorized to transfer ownership. The acquirer must act in good faith, believing that the person from whom they are acquiring property is actually the owner of that property.
- Specificity of the case – Acquisition from a non-owner usually applies to things not registered in the public registry (e.g., movable property), since in the case of immovable property and other registered rights, public records provide clearer information about ownership.
The former owner can demand that the thing be returned by the diligent acquirer, with compensation based on the market price if the thing holds special significance for them. The demand cannot be made after one year from the acquisition of ownership over the thing.
Occupation
Ownership of a movable property abandoned by its owner is acquired by the person who took possession of it with the intent to appropriate it (occupation), unless otherwise specified by law.
Ownership of immovable property cannot be acquired through occupation.
Acquiring Ownership Rights Based on a Legal Transaction
The most common method of acquiring ownership of movable and immovable property is through legal transactions.
Based on a legal transaction, ownership of immovable property is acquired through registration in the public register. Therefore, only when the change in ownership is recorded in the real estate registry, from the previous owner to the new owner, does the new acquirer obtain ownership rights over the immovable property.
For movable property, ownership based on a legal transaction is acquired through the delivery of the property into the acquirer’s possession. Delivery of the movable property is considered completed by handing over a document allowing the acquirer to dispose of the property, or by handing over part of the property, or by marking the property in a way that signifies its delivery.
When the movable property is in the acquirer’s possession based on a legal basis, they acquire ownership of it at the moment the legal transaction is concluded with the owner of the property.
If the acquirer of ownership leaves the property in the possession of the transferor under another legal basis, they acquire ownership when the legal transaction with the owner is concluded.
Ownership of a movable property held by a third party passes to the acquirer when the legal transaction with the transferor allows them to demand the return of the property. The third party has the right to raise objections that they had against the previous owner.
Protection of Ownership Rights
Ownership rights can be protected through legal means. Some of the lawsuits that can be filed to protect ownership rights include:
- Lawsuit for the return of property (reivindication): filed when the owner seeks the return of property that someone has unlawfully retained. The owner must prove their ownership of the property they seek to recover and that the property is in the defendant’s actual possession.
- Lawsuit for exclusion of property: used when the owner seeks the return of property that is in the possession of another person.
- Lawsuit for determining ownership: filed by the owner who wants to prove that they became the owner of a property based on a legal transaction or law.
- Lawsuit for eviction: used when the owner wants to evict a third party occupying their immovable property.
- Lawsuit for compensation for damage: if a third party unlawfully damages or destroys the owner’s property, they can file this lawsuit to compensate for the material loss.
Termination of Ownership Rights
According to the rules of property law, ownership rights terminate when another person acquires ownership of the property.
Ownership rights terminate when the property is abandoned. A property is considered abandoned when its owner unequivocally expresses that they no longer wish to retain it. An abandoned immovable property passes into state ownership upon its abandonment.
Servitudes
Servitudes can be characterized as limitations of ownership in favor of another person or beneficial property. Depending on this, they can be divided into real and personal servitudes.
A real servitude is the right of the owner of one immovable property (dominant estate) to perform certain actions on the immovable property of another owner (servient estate) or to require the owner of the servient estate to refrain from certain actions they would otherwise have the right to perform on their property. Real servitudes can be established for a specific period or for a specific time of year.
Real servitudes are carried out in a manner that least burdens the servient estate. If a device or action is required for exercising a real servitude, the cost of maintaining the device and undertaking the action is borne by the owner of the dominant estate. If the device or action also benefits the owner of the servient estate, the costs are shared proportionally by both the owner of the dominant estate and the owner of the servient estate. Real servitudes are acquired through a legal transactions, decisions of state authorities, and possession.
Personal servitudes are rights that limit the rights of an owner for the benefit of a person, typically arising due to the characteristics of the individual, such as usufruct, the right of use, the right to reside, etc.
Possession
Possession is the factual control of a property. A person has possession of a thing if they posses actual control over it (direct possession). A person also has possession if that person is having control over the thing through another person based on usufruct, a lease agreement, or other legal transactions (indirect possession).
Possession is lawful if it is based on a valid legal basis required for acquiring ownership and is not obtained through force, fraud, or abuse of trust. Possession is diligent if the holder does not know or cannot know that the thing they possess is not theirs.
Protection of Possession
Every holder of a property has the right to protect it from disturbance or deprivation of possession (disturbance of possession). The holder has the right to self-help against anyone who unlawfully disturbs their possession or has taken it away, provided that the danger is imminent, self-help is necessary, and the method of its execution corresponds to the circumstances in which the danger exists.
Judicial protection from disturbance or deprivation of possession can be requested within 30 days from the day of learning about the disturbance and the perpetrator, and no later than one year from the occurrence of the disturbance (dispute over disturbance of possession). The court provides protection according to the last state of possession and the disturbance that occurred, without considering the right to possession, the legal basis of possession, or the good faith of the holder.
Legal Services We Provide
- Drafting all types of contracts for real estate transactions.
- Representation in disputes to protect possession.
- Handling the entire procedure for acquiring property rights until registration in the real estate cadastre.
- Resolving property legal disputes in preparation for land lots for future construction, including preparing all necessary documentation for construction and representing clients before relevant authorities to obtain permits (location conditions, building permits, and usage permits).
- Representation in all types of property disputes.
- Representation in administrative and judicial proceedings related to restitution, land consolidation, expropriation, and determining compensation for expropriated land, etc.
- Representation in disputes for compensation of the value of usurped land.
- Representation in non-litigation procedures related to the regulation of property legal relations.
- Our property law attorneys provide written and verbal legal advice in the field of property law.
If you are looking for a reliable and experienced lawyer for assistance in the area of property law, including acquisition, protection of property, and resolving property-related issues, our team is at your disposal. With years of experience in providing legal support to individuals and legal entities, we offer services fully tailored to the needs of our clients. Whether you need a legal analysis, contract drafting, representation in property disputes, resolution of possession issues, or legal advice regarding the legal status of your property, you can rely on our expertise.
Frequently Asked Questions
This question concerns the necessary steps in the real estate purchase process, how ownership rights are registered in the cadastre, and the key provisions of the contract that protect the buyer’s interests. To eliminate any doubts, it is essential to hire a lawyer who will analyze all documentation, prepare the contract, and ensure that the ownership rights you wish to acquire are registered in the real estate cadastre based on that contract.
Clients often seek legal advice regarding the protection of possession and ownership. In such cases, it is necessary to initiate court proceedings to protect your rights.
Inheritance disputes are common and involve issues such as property division, the legality of wills, the rights of heirs, etc. To ensure timely and adequate legal protection, it is essential to consult a lawyer who will take the necessary steps to protect your rights.