When it comes to ownership, most people imagine complex contracts, sales or inheritance. However, there is another way to legal ownership of property — the acquisitive prescription. It is a unique legal mechanism that allows people to become legal owners of property if they have owned it continuously and openly for a certain period of time. However, there are many legal nuances along the way that can both help and hinder.
What conditions must be met in order to protect your right to property due to prescription? Lawyers of the “Repeshko and Partners” Bar Association comment on the intricacies of the statute of limitations and key points that should be known to everyone who seeks to secure property in this way.
Apparently, nowhere are there as many legends as in medicine and jurisprudence. From year to year, information spreads among citizens that almost half of the diseases can be cured with hydrogen peroxide, and if you are registered in an apartment or house for several years (three to be exact), you will get the right to own it. We do not dare to assert that both legends are completely untrue, but it is more likely from that series – I heard a bell, but I don’t know where it is.
The question of ownership of real estate is always very relevant, especially when it concerns the question of how to get ownership of something that you do not have the right to. Apparently, the only case that allows such a dream to come true is the acquired statute of limitations.
We want to warn right away that it is not as simple as it might seem. A lot depends on the area in which the desired property is located and how the local community feels about it. Before the start of hostilities on the territory of Ukraine, almost no one was interested in property that seemed to have no user. A large number of internally displaced persons, who need to be accommodated somewhere, made their adjustments, and local communities began to look carefully at abandoned apartments and houses, take them into account and prepare them for acceptance into the community’s balance sheet. In turn, some judges believe that the conditions specified in the law for acquiring property on this basis are almost impossible to fulfill, others treat it more simply. In any case, if there is a chance, why not take it?
Article 328 of the Civil Code (CC) of Ukraine it is established that the right of ownership is acquired on grounds not prohibited by law, in particular from transactions. The right of ownership is considered legally acquired, unless otherwise directly follows from the law or the illegality of the acquisition of the right of ownership is not established by a court.
According to Article 344 of the Civil Code of Ukraine, a person who has acquired someone else’s property in good faith and continues to openly and continuously own immovable property for ten years or movable property – for five years, acquires the right of ownership of this property (acquisitive statute of limitations), unless otherwise established by this Code. In accordance with part 2 of this article, a person who declares the time limit of possession can add to the time of his possession all the time during which the person, whose heir (successor) he is, owned this property.
According to Article 119 of the Land Code of Ukraine, citizens who have been using a land plot in good faith, openly and continuously for fifteen years, but do not have documents certifying that they have rights to the specified land plot, can apply to the Council of Ministers of the Autonomous Republic of Crimea, an executive power body or a local self-government body with a request to transfer such a plot of land into their ownership.
Acquisition by citizens of the ownership right to a land plot based on the seniority of use is carried out in the order of free privatization of land plots by citizens in accordance with Article 118 Land Code of Ukraine within the norms defined by Article 121 Land Code of Ukraine.
Therefore, it is possible to obtain property within the statute of limitations in the following terms:
- After five years for movable property;
- Ten years later for real estate;
- Fifteen years later for a plot of land.
Thus, Article 344 of the Civil Code of Ukraine provides for a number of conditions that must all be met in order to acquire ownership of property:
- Legality of the object of ownership;
- The good faith of acquiring someone else’s property;
- Continuity of ownership;
- Expiration of the established minimum terms of ownership;
- Absence of the law on the restriction or prohibition of acquiring the right of ownership on this basis.
Possession in good faith means that the person did not know and should not have known that the possession of the thing was illegal. Establishing good faith depends on the grounds for acquiring the property.
Given the provisions Civil Code of Ukraine that the rules on the acquisition statute of limitations also apply to cases where ownership of property began three years before this Code entered into force, the court’s recognition of the right to ownership of immovable property by statute of limitations shall take place no earlier than January 1, 2001. At the same time, the courts proceed from the fact that when the term of ancient possession began before January 1, 2001, only the term from January 1, 2001 is included in the term that gives the right to acquire the right of ownership by the acquisition statute of limitations. At the same time, if the period of possession by prescription began after this date, then this period is counted in full before the period of acquisitive limitation.
However, the most common are situations related to real estate, namely residential buildings and apartments. It is this property that is usually meant when they talk about acquisitive prescription.
A practical example: a citizen is the owner of ½ part of a residential building, he lives in it, takes care of it, and repairs it. The owner of the other half of the house has died, he has no heirs. The living owner begins to use the entire house, in the next 10 years he repairs the house, runs gas and water, covers the roof, installs a new fence. In the twelfth year, the question arises – what to do with the ½ part of the deceased co-owner and whether it is somehow possible to issue it to the living co-owner. A possible option is when a mother and daughter settled in such a house, five years later the mother died, and another six years later the daughter decided to sort out the real estate issue somehow. This is where the same article about the statute of limitations may help. The word “maybe” is used precisely because, as already mentioned earlier, different local communities and different judges look at this issue in different ways.
In the same Ruling of the Supreme Court of Ukraine dated June 15, 2023, in case No. 359/8844/20, the court stated that the fact of the claimant’s use of the disputed home ownership in itself is not a reason for her to have the right of ownership by statute of limitations. However, in the same Unified State Register of Court Decisions there are many other decisions where, on similar grounds, the right of ownership was recognized for a person in the order of acquisitive prescription, and fortunately no one contested them, and therefore they entered into force.
The fact is that it is possible to obtain real estate or a plot of land, vehicles, and securities by statute of limitations only in court by filing a claim for recognition of the right of ownership. The defendant in such a case (the person with whom you are directly suing) will be the local community, that is, the village or city council.
What is necessary to prove one’s position to the court
Prove in court that the property has no owner: he died or is presumed to have died due to age and has no heirs. That is, the notary must request information on whether the inheritance case was initiated after the death of the owner, if so, who accepted the inheritance and when, and where exactly those heirs are.
Another possible option: given his age and available information, the owner is alive, but his whereabouts are unknown and he is not interested in the property. Here is a chance to take advantage of the case when twenty years ago a citizen of the Russian Federation came for two days, accepted the inheritance and left. No one ever saw him again. At the same time, it is necessary to find out who exactly is registered in the house/apartment and where these persons are now.
It is also necessary that no one ever complains that a person owns property and prevents other co-owners from owning it. Ideally, it is necessary that the neighbors go to court as witnesses and confirm the fact that you have been using the house for ten years, maintain it, repair it, why they are infinitely happy. It will not be superfluous to obtain acts from the local deputy with the participation of the same neighbors to confirm sole and continuous use of the property.
In addition, the court must provide written evidence: receipts showing that you pay utility bills for the entire apartment and receipts for construction materials and works as proof of completed repairs.
Witnesses are also necessary, who must come to court and confirm under oath the fact that you have used the property continuously.
It should be noted that in this case, the lawsuit is an assessment, so you need to order a report on the value of the property you want to own from the relevant subject of assessment activity. At the same time, the court fee is 1% of the amount of the claim, but for 2024 it is not less than UAH 1,211.20 and not more than UAH 15,140.00.
When resolving disputes related to the acquisition of ownership by statute of limitations, the courts must take into account, in particular, that possession is in good faith, if the person, when taking possession of someone else’s property, did not know and could not have known about the lack of grounds for acquiring the ownership right; possession is recognized as open, if the person did not hide the fact of finding the property in his possession. Taking the usual measures to ensure the protection of property does not indicate the concealment of this property; possession is recognized as continuous if it was not interrupted during the entire period of acquisitive limitation.
Another practical question that may arise in connection with this – will the property of the spouses that they acquired during the marriage be subject to division, as property acquired in the order of prescription? It also depends a lot on many circumstances. If a man and a woman live together in the same conditional house for ten years and invest joint family funds in the repair of the house, then the question of acquisition of the statute of limitations should be asked in relation to both of them.
If a person, although he is married, does not actually live with his spouse, does not run a joint household, does not have a joint budget, then it is advisable to designate the second spouse in court as a third person who does not make independent claims and to recognize the right of ownership of myself personally If the spouses do have joint farms and a budget, but only one of the spouses wants to take ownership of the property, then the second spouse must be made a co-defendant together with the local community and motivate in the statement of claim why you consider the same conditional part of the house purely yours (he sold the inherited property – spent funds on the repair of the disputed part of the house).
In this way, it is possible to formalize property that was transferred according to the so-called “house agreements”. This is quite relevant in small towns and villages, where property was sometimes transferred to ownership by receipt in connection with saving money or other objective situations. It is a very real situation when a neighbor bought a house from a neighbor on a receipt, because one desperately needed funds, the other a house for his son, who got married yesterday, and he did not have the opportunity to get it done at the notary, because the seller himself did not have the documents for the house in order – it takes time for registration Then the seller promised for a long, long time to get to the notary, and then he died altogether. The buyer was also not too worried – his son moved into the house, has lived there for ten years and has already given birth to three children there.
Oddly enough, the main summary about the possibility of acquiring property in the order of acquisition seniority – if you don’t try, you won’t know! And by the way, registration by itself (now registration) never gives the right to own a home, regardless of how long a person has been registered and lived there – even three years, even ten.
