Acquisition of real estate by prescription in good faith – legal advice

Prescription involves the loss of ownership by the previous owner, who does not receive any remuneration, compensation, or equivalent from the person acquiring the property through prescription. Only an item that can be a separate object of ownership can be acquired by prescription. Through prescription, one can acquire ownership of land, a building, or a premises. It is also possible to acquire an easement or perpetual usufruct through prescription. However, it is not possible to acquire by prescription the perpetual usufruct of real estate belonging to the State Treasury, but only the usufruct established for the benefit of a specific person (entity). In a great simplification, it can be said that prescription is a way of acquiring ownership through the passage of time; good and bad faith are of significant importance in this case, as described below.

For there to be any talk of the commencement of the prescription period, a given entity must possess the property as an independent possessor. Who is that?
An independent possessor is someone who possesses the property as an owner. It is therefore necessary for the possessor to perform all factual activities indicating an independent, real, and unconstrained state of control, without simultaneous legal title in the form of ownership rights. An independent possessor behaves like an owner, takes care of the property, and pays the associated fees. A tenant or lessee, for example, is not an independent possessor; they are referred to in Polish law as dependent possessors. If a person who has signed a lease or tenancy agreement, for example for an indefinite period, wants to acquire the property by prescription, they will not succeed. This is because they are not an independent possessor, but a dependent one, even if the owner has “vanished” or is not interested in the property at all.

Another prerequisite on which the acquisition of property rights through prescription depends is the passage of time.
The Civil Code speaks of prescription periods for real estate in Article 172. They are 20 and 30 years, respectively. Which of these applies in a specific case depends precisely on the existence of good or bad faith. Good and bad faith are concepts denoting a subjective attitude towards the possessed property. Often difficult to verify. It is assumed that an independent possessor who remains in the mistaken, but justified by circumstances, conviction that they are entitled to ownership rights is in good faith. In other words, they treat themselves as the owner. In such a case, a shorter, i.e., 20-year, period of possession is required for prescription. Proof of the existence of good faith before a court may include, for example, submitting evidence of tax payments, a certificate of the owner’s departure, or witness testimony.

In a situation where an independent possessor is perfectly aware that the ownership right belongs to another person, and yet continues to possess the item, we speak of “bad faith”; in that case, possession of the property for 30 years is necessary.
The decisive factor for determining the period of remaining in good or bad faith by an independent possessor is the moment of taking possession of the item. If a person considered themselves the owner and used the property as an owner, and the actual owner appeared during their possession, this does not undermine the existence of good faith. It is worth noting here that when the previous owner, against whom the prescription is running, is a minor, the prescription period cannot end before two years have passed since they reached the age of majority. In such a case, the existence of good or bad faith is irrelevant.

Małgorzata Papaj is a lawyer who mainly deals with lease and sale transactions of commercial and industrial real estate at the JARTOM real estate agency, which has been on the market since 1992. JARTOM experts provide consulting services in the field of real estate trading. They also mediate in the conclusion of lease and sale agreements for warehouse facilities, production halls, and plots intended for industrial development.