Adverse possession ( lat . Usucapio ), the acquisition of things in the sense of civil law the passage of time and individually owned .
Property can be acquired in a number of ways. One type of the original acquisition of property is ownership , which presupposes (qualified) possession during a legally specified period. At the end of the period, the owner has acquired the original property and the previous owner has lost his rights. The purpose of the legal institution of the presidency is that no legal uncertainty results from the divergence of property and exercised possession. The ownership serves a double purpose: the owner who mistakenly considers himself to be the owner is granted an interest in acquiring and the general need for traffic protection (legal protection) is taken into account. The period of time is set in such a way that the previous owner is given sufficient time to pursue his rights and, on the other hand, that the purchaser does not experience any significant difficulties in providing evidence.
The legal institution is comparable with the statute of limitations , in which the passage of time results in a legal advantage or disadvantage.
The starting point for the development of usucapio was the Roman Twelve Tables Law with Table VI, 3 (property law): Whoever owned a piece of land for two years and another thing for a year ( usus ), acquired original property and was no longer from the previous reason for acquisition and the Guarantee ( auctoritas ) of the foreman dependent. The XII Tables, however, regulated exceptional circumstances. For example, there could be no change of law to objects that were capable of being redeemed but stolen or to res mancipi that a woman had sold without auctoritas tutoris .
Objects that could be acquired were called res habilis . The prerequisite for employment was bona fides ( good faith ).
The acquisition is a kind of acquisition of rights, in particular the acquisition of ownership of things in the legal sense. Their importance is lower in German law compared to other legal systems , because German law recognizes the good faith acquisition of movable property, see also transfer of ownership . The scope of the acquisition is therefore almost limited to the owner of lost movable property. In this way, the bona fide owner can also acquire ownership of stolen items. This was not possible according to the Twelve Tables laws in Roman law , as demonstrated by the institutions of Gaius, 2.45, Table XII 8.17. According to Roman law, stolen things were “insatiable”.
Movable property (§§ 937–945 BGB)
Who a movable thing ten years honest in self-owned ( § 872 BGB has), acquires, under German law the property ( § 937 BGB ). So ownership gives someone who honestly believes himself to be the owner within a certain period of time without actually being, for example because someone else has lost the acquired thing, if he has owned the thing as his own for the entire time .
The law thus eliminates the discrepancy between the supposed and the true legal situation after the expiry of the prescription period and takes into account the fact that after a long period of time there will be considerable difficulties in providing evidence to clarify the circumstances of the loss of property with the previous owner.
The acquisition of property arises from the so-called “persistence” or “continuity interest” of the owner. The owner only acts honestly if he was in good faith in his property both when acquiring the property and during the period of possession. When acquiring ownership, the grossly negligent ignorance that he has not acquired any property does harm .
The acquisition leads to the acquisition of unencumbered property ( § 937 BGB).
It is disputed whether the acquisition leads to claims under the law of enrichment . The problem here is whether the acquisition of property takes place without a legal reason within the meaning of § 812 BGB. The law does not contain any reference to the right to enrichment as in § 951 / § 977 BGB. According to another view, there is an entitlement to performance conditions if the owner had been acquired after a failed service relationship with the previous owner. In this case it should be possible to demand the surrender of the thing via § 818 I BGB. It is also disputed whether a condition of intervention, which is based only on the loss of property, comes into consideration. The practical significance of the dispute is only minor, but the BGH has meanwhile joined the view that claims for enrichment should be excluded in principle.
Ownership of a property can also be acquired. Here one speaks of the so-called “book” or “tabular session”. According to German law ( § 900 BGB) it is necessary that the person in whose favor the prescription is to take effect for thirty years
- is registered in the land register - without authorization - as the owner, and
- actually owned the property. In contrast to movable property, it does not depend on good faith . Under the same conditions, acquisition of property rights entitling the holder to property is possible (e.g. easement ).
After § 927 BGB a possessor in can levy process an exclusion decision (to 2009 exclusion verdict obtain), which excludes the owner from his right, and it is by entry in the land register acquire (Kontratabularersitzung).
In Austrian law, ownership is both a type of original property acquisition and a possibility of acquiring rights to a servitude .
The prescription takes the following forms:
It is the “classic” form of presidency, which requires “presidential possession” (i.e. legal, honest and genuine possession ). It is characterized by the fact that it replaces the missing property of the foreman with the passage of time. The retention period is three years for movable property and thirty years for immovable property.
The property qualified by legality, honesty and authenticity is specially protected by the Actio Publiciana .
It only requires honest and genuine possession. A title (e.g. purchase , exchange , donation ), i.e. legal possession, is not required. Irrespective of the mobility of the matter, the period of prescription is thirty years.
In this way, servitutes , such as road or driving rights, can also be obtained. If the owner of a property does not prevent the neighbor from using a path for thirty years, for example, the right to the servitude is acquired ( outside the books ). In order to prevent unencumbered purchases in good faith in accordance with the negative publicity principle - what is not registered does not apply - it is recommended that you register as soon as possible.
If an easement (“servitut”) has been obtained in the above sense, but the owner of the encumbered (“serving”) property actually hinders the exercise of the servitude (for example by blocking the servitude route or making it impassable), this servitude expires three years. To prevent this, a lawsuit must be submitted to the court before the deadline.
Easements that have not been acquired through possession also expire through a session of freedom. If the easement is entered in the land register, the land register status becomes incorrect after three years from the establishment of the obstacle (because the registered easement has been lost due to the freedom meeting). The owner of the serving property can sue for deletion of the incorrect entry.
As long as an expired easement is still entered in the land register, it can be acquired in good faith by relying on the land register status. However, good faith presupposes that the purchaser cannot see that there is actually an obstacle to the exercise.
Since the actual adverse possession rightful ownership, so a title such as purchase , exchange or donation requires, she is there of importance where a bona fide purchaser was not possible (for example because the tradesman was acquired): The example purchaser of a mobile thing has Neither acquired primarily by derivative means nor acquired in secondary faith , but ultimately - assuming honesty during the entire period, of course - after the three years have expired, property can be acquired through ownership.
In the case of real estate, it can happen that the real estate is handed over but is not incorporated into the land register . As a result, the transferee has acquired property (property in kind), but not yet property. After the thirty-year period has expired, it becomes the owner through prescription (outside the books). In the meantime, provided that he is the legal owner, he is protected by the Actio Publiciana (Austria) in terms of both vindication and negation.
The possession of movable property is regulated in Article 728 of the Civil Code; this notes:
- 1 If someone has owned another person's movable property in good faith for five years without interruption and unchallenged, then he becomes the owner through possession. (...)
A period of two months has been set for pets , and thirty years for certain cultural goods.
The possession of real property is regulated by Articles 661-663 of the Civil Code, which distinguishes between ordinary and extraordinary prescriptions :
- 5. Acquisition
- a. Ordinary prescription
- If someone is unjustifiably registered as the owner in the land register, his property can no longer be challenged after he has owned the property in good faith for ten years without interruption and unchallenged.
- b. Extraordinary session
- 1 If someone has property that is not recorded in the land register as his property for 30 years without interruption and unchallenged, he can request that he be registered as the owner. (...)
These cases of possession of real estate (including the possession of permanent and independent rights according to Art. 655 II 2 ZGB and easements according to Art. 731 III ZGB) are finally listed. In contrast to German law, Swiss law does not provide for a counter-tabular meeting of real estate.
- Andreas Piekenbrock: Time limitation, statute of limitations, concealment and forfeiture , Mohr Siebeck, Tübingen 2006.
- Herbert Hausmaninger , Walter Selb : Römisches Privatrecht , Böhlau, Vienna 1981 (9th edition 2001) (Böhlau Study Books) ISBN 3-205-07171-9 , pp. 153–156.
- Article 728 of the Civil Code
- Article 661 of the Civil Code
- Article 662 of the Civil Code
- Article 663 Civil Code
- ^ Max Kaser: Roman private law . 15th, improved edition, 1989, ISBN 3-406-33726-0 , § 25 II = p. 118 ff.
- ↑ a b Herbert Hausmaninger , Walter Selb : Römisches Privatrecht , Böhlau, Vienna 1981 (9th edition 2001) (Böhlau-Studien-Bücher) ISBN 3-205-07171-9 , pp. 151–153.
- ^ Fritz Baur: Textbook of Property Law . 14th, revised edition, 1987, § 53h I = p. 528: "... today only effective in atypical case groups ...".
- ^ Hans Josef Wieling: Property Law. Volume 1: Property, possession and rights to movable property . 2., completely revised Ed., Springer, Berlin / Heidelberg 2006, ISBN 978-3-540-29869-4 , p. 422.
- ^ Max Kaser: Roman private law . 15th, improved edition, 1989. ISBN 3-406-33726-0 , § 25 I 2b = p. 118.
- ↑ a b c Fritz Baur: Textbook of Property Law . 14th, revised edition, 1987, § 53h I = p. 529.
- ^ Fritz Baur: Textbook of Property Law . 14th, revised edition, 1987, § 53h II = p. 530: Same as § 950 BGB.
- ^ Fritz Baur: Textbook of Property Law . 14th, revised edition, 1987, § 53h III = p. 531.
- ↑ Peter Bassenge, in: Palandt, BGB, 67th, revised edition, Munich 2008, ISBN 978-3-406-56591-5 , before § 937 BGB margin no. 2 with further evidence of the state of opinion.
- ↑ Othmar Jauernig, in: Ders., BGB, 11th, revised edition, Munich 2004, ISBN 3-406-51820-6 , before § 937 BGB marg. 4 with further evidence.
- ↑ On the whole in detail: Werner Lorenz, in: Staudinger, BGB, 13th edition, December 1993, before §§ 812 ff. BGB marg. 38.
- ↑ BGH NJW 2016, 3162.