Requirements for acquisitive prescription

Act No. 40/1964 Coll. Civil Code (hereinafter referred to as the " Civil Code "), in addition to the typical methods of acquiring ownership of a thing under Section 132 of the Civil Code (e.g. based on contractual types such as a purchase contract, a donation contract, etc., or based on the law - inheritance, etc.), also regulates a specific method of acquiring ownership of a thing - acquisitive prescription. Acquisitive prescription is regulated in Section 134 of the Civil Code. This is an institution that has been frequently used in the past and in the present, and it must be said that it has also been frequently abused (especially certificates of retention through notarial deeds).

Section 134 of the Civil Code reads: "(1) The authorized holder becomes the owner of a thing if he has it in continuous possession for a period of three years in the case of movable property, and for a period of ten years in the case of immovable property. (2) Ownership of things that cannot be the subject of ownership or things that can only be owned by the state or by legal entities designated by law (Section 125) cannot be acquired in this way. (3) The period for which the thing was in authorized possession by the legal predecessor shall also be included in the period under paragraph 1. (4) The provisions on the passage of the limitation period shall apply mutatis mutandis to the beginning and duration of the period under paragraph 1."

Both immovable and movable property can be sustained. The difference between the endurance of movable and immovable property is the length of the endurance period.

The prerequisites for endurance are:

a) eligible subject of the retention, b) legitimate possession, which also includes the existence of an acquisition title, c) the expiration of the retention period, which must be continuous.

A) The eligible subject of retention is what, according to the law, can be held and retained, and therefore, what every citizen or other entity can acquire in this way. It can be real estate (building, land), but also movable property (car, furniture, machine, book, etc.). Certain things are excluded from retention, such as things that can only be owned by the state - mineral wealth, caves, groundwater, natural healing resources and watercourses (Article 4 of the Constitution). According to Article 20 of the Constitution, certain property can also be excluded from retention by law. Therefore, if the thing that I want to acquire by retention is not excluded from retention, I can become its owner in this way.

B) Rightful possession is understood as possession of a thing in the knowledge that I am the owner of the thing held. According to Section 129, paragraph 1 of the Civil Code, " The holder is the one who treats the thing as his own or who exercises the right for himself. " However, the aforementioned provision only deals with "simple" possession, while legitimate possession is necessary for holding. Rightful possession is understood as a higher level of possession of a thing, according to Section 130, paragraph 1 of the Civil Code, " If the holder is bona fide in all circumstances that the thing or right belongs to him, he is a legitimate holder. In case of doubt, it is assumed that the possession is legitimate. " Rightful possession is therefore understood as possession of a thing in which the holder is bona fide in all circumstances that he holds the thing as his own. His subjective belief is not enough, but his good faith that the thing belongs to him must be based on objective circumstances. Possession does not mean the actual use of the thing exclusively by the holder, i.e. he does not have to use it himself, but it is possible that the holder entrusts the thing to another as his own - e.g. the holder gives it to a cooperative for use (by lease, etc.). The condition for the legitimacy of possession also includes the existence of an acquisition title upon entering into possession. It is not possible to hold a thing simply by holding the thing without a legal title. This means that if, for example, I use someone else's land (even if I were in good faith that it belongs to me), but I do not have any acquisition title, there can be no retention. In this way, it is possible to hold the thing for a period exceeding the mandatory retention period, but retention will never actually occur. The title deed does not have to be valid, but it must exist (e.g. purchase contract, agreement on the settlement of co-ownership, donation contract, contract for work, etc.). In the case of movable property, it is also possible to admit a title deed that is not in written form (oral contract, implicit contract, etc.). In the case of the acquisition of real estate, according to the uniform case law of the courts, the possibility of fulfilling the conditions of retention without the existence of a written title deed (e.g. a written contract) is currently not allowed.

C) The retention period is 10 years for real estate and 3 years for movable property. According to Section 134, paragraph 1 of the Civil Code, " The authorized holder becomes the owner of the thing if he has it in continuous possession for a period of three years in the case of movable property, and for a period of ten years in the case of immovable property. " During this entire period, the condition of authorized possession must be met, i.e. during this period, the holder must be in good faith that the thing belongs to him. This retention period can also include the retention period that passed to the legal predecessor (e.g. the thing was held by the father and after his death by his son - the retention periods of both are therefore added together).

When all of the above conditions are met, none of which may be missing, the holder becomes the owner of the thing.