Real estate - Beware of the statute of limitations

The question of prescription often arises in connection with the sale of real estate. The seller believes he owns the property, but the title deeds show that he does not. He will then have to establish his ownership by means of an acte de notoriété acquisitive before he can sell in turn.

Assets eligible for prescription

Acquisitive prescription enables a person to become the owner of a property that does not belong to him or her. If all the conditions for prescription are met, the true owner forfeits his or her rights to the property. Property and rights likely to be affected by this mechanism include :
- property rights over real estate (land, house, garage, building, but also the common and private parts of a condominium, etc.)
- ownership rights and joint ownership rights (usufruct and bare ownership).

Several conditions

For acquisitive prescription to be established, it is necessary that :
- the occupier is using the property in full view of the public, as would the rightful owner (e.g., carrying out works, fencing off the land, planting, etc.);
- possession was taken without any act of violence (material, verbal or moral) or pressure of any kind. Legally, possession is said to be peaceful if
- use by the occupant has been continuous and uninterrupted for 30 years;
- the owner in title has not been heard from during the entire time the occupant has been using the property.

In the event of a dispute, it is up to the possessor to provide proof that all the above conditions have been met, by any means (including testimonies and attestations from neighbors, etc.).

ARE EXCLUDED FROM PRESCRIPTION ...

Certain types of real estate are not subject to acquisitive prescription. These include businesses, public property and listed sites.

Deed of acquisitive notoriety

This deed, drawn up by a notary, does not constitute a title deed and does not replace it, but it does provide additional proof of the existence of acquisitive prescription. It consists of :

- at least two testimonials attesting to peaceful, public and continuous possession for the required period ;
- supporting documents to substantiate this possession;
- a list of material acts performed by the possessor.

SHORTER TIME LIMITS

The acquisitive prescription period can be as short as 10 years if two conditions are met:
- good faith on the part of the possessor (the belief that he holds the property of the true owner);
- just title, i.e. the existence of an act which does not emanate from the true owner.an act which does not emanate from the true owner of the property, but which would have been likely to transfer ownership.

Marie Christine MENOIRE