A co-owner’s or co-heir’s intention to possess the entire property

Article 79(1) of the Ownership Act provides that ownership of immovable property is acquired by prescription through continuous possession for 10 (ten) years. To count towards acquisitive prescription, possession must be continuous, peaceful (not obtained or maintained by force), open (not obtained or maintained secretly) and unequivocal: actual control must be exercised with the intention of holding the property as one’s own. See Supreme Court of Cassation Decision No. 262 of 1 November 2012 in civil case No. 439/2012, Second Civil Division.

The courts have consistently held that a co-heir possesses inherited property on behalf of all the co-heirs. To convert that possession into exclusive possession for themselves, the co-heir must oust the other co-heirs or repudiate their possession. A vague assertion of independent possession is insufficient.

If the reason for entrusting someone with custody of a thing ceases to exist, this does not by itself turn custody into possession. The holder has not formed the intention to possess as owner, and no new fact has provided a different basis for exercising control. Control established as mere holding continues on that basis until the basis changes. Conversion requires a new fact: conduct denying or excluding the former possessor’s rights while simultaneously claiming those rights for oneself. Acts demonstrating that change, including a co-owner’s or co-heir’s intention to possess the entire property, must specifically repudiate the rights of the other co-owners or co-heirs. See, among others, Supreme Court of Cassation Decision No. 635 of 25 October 2010 in civil case No. 1405/2009, First Civil Division, and Decision No. 6 of 22 January 2010 in civil case No. 2760/2008, Second Civil Division.

The co-owner must take steps that openly and unequivocally deny the other co-owners’ possession. If a dispute arises, the burden of proving this change in the character of possession lies with the co-owner asserting it (Supreme Court of Cassation Decision No. 45 of 15 April 2014 in civil case No. 6619/2013, Second Civil Division, and Decision No. 99 of 22 June 2015 in civil case No. 6817/2014, First Civil Division). As a rule, taking possession of the other co-heirs’ undivided shares and the change in the character of possession must be brought to the other co-owners’ attention, unless that is objectively impossible.

This article is not a legal opinion of attorney Mihail Tomov, attorney Elitsa Markova or a lawyer at Markova, Tomov and Partners, or advice concerning a particular situation or person. For legal assistance with a property matter, consult a lawyer practising in this field.