Usucaption of a share in real estate by a co-owner
As part of our real estate law practice, we have once again encountered a problematic situation regarding the usucaption of shares in real estate by one of the co-owners.
As we previously wrote here, in light of the Supreme Court’s restrictive jurisprudence protecting the property rights of non-owning co-owners, even if the latter do not have an interest in the property, a co-owner who wants to inherit shares must additionally prove to the court that he has manifested to the other co-owners the will to own the property in excess of his share, and therefore in a broader scope than the co-owner’s rights under Art. 206 of the Civil Code. However, there is a lack of guidance in the case law as to what actions can be considered such a manifestation, since, according to the courts, taking care of the property, bearing the burdens associated with it, and making expenditures on it are considered insufficient to establish the acquisition of shares by a co-owner.
In the case before us, two plots of land that form a functional whole, although disclosed in different land registries, are being claimed for acquisitiveness. As for one plot, our clients are co-owners, while as for the other they are not tabular owners at all. Despite the identical circumstances of the various properties and the identical exercise of authority over them, the court granted our clients’ request for an order of seizure for those parcels over which they had no rights. At the same time, the court decided to dismiss the application for the usucaption of these plots of land, as to which the clients are co-owners with the municipality. The same intent and the same behavior, and the procedural consequences completely different. This points to the courts’ inconsistent approach to the issue of usucaption, especially when it involves co-owners who are local government units.
In this case, it is emphasized first and foremost that the co-owner – the municipality – was at all times
passive to the property. Despite the fact that the municipality is a professional and has abundant personnel and financial resources to strive to preserve its law, it has not done so. However, this was irrelevant to the court in deciding the application for a share in the co-ownership of the property.
In light of the lack of clear guidance from case law on how a co-owner can externalize his intention to wield the property for himself to the exclusion of the other co-owners, in a situation where the non-owning co-owner does not exercise his powers at all, the law firm in the case in hand, initiated proceedings to have the Supreme Court issue a resolution clarifying whether the non-exercise of powers over their shares in co-ownership by co-owners should or should not be considered an outward manifestation of the non-possessing co-owner’s estrangement from co-ownership by the possessing co-owner who sits on the share.
The purpose of these activities is not only to resolve our clients’ specific dispute, but also to clarify the general rules regarding the usucaption of shares in real estate by co-owners, which can have a significant impact on future proceedings and the practice of applying the law.
This case demonstrates how complicated and varied court rulings on real estate ownership issues can be, while also highlighting the need for in-depth analysis and a case-by-case approach to each case, which we at our law firm provide.
The case is being handled by the team Magdalena Wilczyńska and Tomasz Przybecki.