Ask for free any questions on our legal forum
The adverse possession or prescription acquisitive is a way for the owner of a property to acquire the property."Prescription acquisitive is a way to acquire a property or a right by the effect of the possession without the plaintiff being obliged to bring back a title or to oppose the exception inferred bad faith"In addition, section of the same code provides that:"ownership is acquired also by accession or incorporation, and by prescription". Thus, the adverse possession is one of the various ways in which one acquires the ownership of a movable property or real estate. However, it should be emphasized that the prescription acquisitive real estate is subject to a number of conditions to be able to be effective. First of all, the article of the civil code provides that:"in order to be able to prescribe, it must be a possession". Possession is the exercise of a physical power over a thing, and assumes the existence of two constituent elements, namely: - the corpus that refers to the material acts performed on the thing, such as those that would be asked to complete an owner - the animus, which refers to the fact of owning a thing by behaving as the true owner of the thing. Thus, the animus excludes the tenant, who may not own the property it leases as the owner.
Given these elements, the article of the civil code cited above, requires that the possession has all of the characteristics of the possession useful, which requires that the possession be: - unambiguous, and as the owner (no doubt on the origin and the manner of possession as the real owner).
Our volunteers respond directly online
This character unequivocally is a necessary condition of the possession in that it returns to the animus. In practice, it is customary to write a deed by a notary public, says"affidavit option", allowing to see that the characters of possession are well filled, but this is not mandatory.
Moreover, in the matter of adverse possession of real property, the civil Code requires that the possession lasts for thirty years.
However, this period of thirty years, may be reduced to ten years, to a period known as"short", only if the owner has two additional conditions, such as: - a just title (a title that would have been able to transfer the ownership of the property if it was from the true owner). In addition to these prerequisites, the acquisition of ownership by prescription necessarily requires an action in adverse possession, by means of the lawyer of the owner, before the president of the tribunal de grande instance in order to be recognised as such and to produce all its effects. In effect, the law does not allow the possessor satisfies the conditions of adverse possession to become the owner of full right. Concretely, the period of limitation invoked will obtain a judgment declaring the existence of the adverse possession. If applicable, the judgment will be published to the conservation of mortgages, which have an authentic deed, and possibly be able to sell the property as the owner recognized. On a case-by-case basis, it will be up to the judges to see or not the existence of the property acquired by adverse possession. In this regard, the three October, the Court of cassation has held that:"having skillfully chosen that it was a result of the certificates produced evidence that the acts of possession relied on Mr X had been made for more than thirty years with the desire to be the sole owner, the court of appeal, which was not required to conduct a research that its findings were inoperative, has, by these only on the grounds, legally justified its decision"(Cass. Civ. In addition, regarding the evidence of adverse possession, it is clear from a judgment of the Court of cassation of the fourteen January that the act of recognition acquisitive of a building is not sufficient to prove the adverse possession and requires proof of adverse possession in all its elements, such as exposed previously (Cass, Civ III, fourteen January, n°-). Moreover, it should be noted that the adverse possession may be granted to the interest holder, joint heir to a property in the estate."The share can be requested, even when one of the undivided co-owners enjoyed separately of all or any part of the property undivided, if there has been no act of sharing, or a possession sufficient to acquire the prescription'. In other words, the share of undivided ownership succession is no longer possible if one of the joint owners has all the characteristics of"possession sufficient to acquire the prescription'.
It is possible, therefore, to the interest holder, to acquire by adverse possession the whole of the property in the estate.
In this regard, it is settled law that the party seeking to acquire title to the property-owner must prove all of the constituent elements of adverse possession and in particular that it has exclusively and unequivocally undivided ownership (Cass, Civ I, ten December Cass. Civ. III, five may, n°-) In addition, the judgment of the Court of cassation of the three October cited above is an example of the application of the mechanism of the adverse possession to the owner, stating that:"the acts of possession relied on Mr X had been made for more than thirty years with the desire to be the sole and exclusive owner". In terms of ownership, only the prescription acquisitive of thirty years old is applicable since the limitation period shortened to ten years, and requires a fair title, is excluded in the case of an undivided estate.
Finally, this recognition of property shall have a retroactive effect since the origin of the possession, which means that all acts of the former owner shall be considered as having been made by the true owner since the beginning of the possession.
Lawyer litigation and a teacher, this blog contains more than. six hundred legal articles to share my knowledge and my passion for the law.
