Acquisitive Prescription of Inherited Property by One Heir

Acquisitive prescription is an original method of acquiring ownership regulated in Article 79 and subsequent provisions of the Property Act. It is based on the continuous, open, and undisputed exercise of factual control over the property, combined with the intention to own it. When the object of acquisitive prescription is an inherited property, a number of specific issues arise, related to the co-ownership between heirs.

Inherited property as an object of co-ownership

Upon the opening of the inheritance, the ownership rights pass to the heirs, who acquire ideal shares of the property (Art. 5, para. 1 of the Inheritance Act). Until partition is carried out, all heirs are co-owners and jointly exercise the right of ownership. Each of them has the right to use the property proportionally to their share without obstructing the others.

Possession and holding among heirs

For one heir to acquire the entire inherited property by prescription, he or she must change the nature of their factual relationship with the property. While the co-owner exercises factual control over the property for themselves and the others, they are considered a holder, not a possessor. To trigger acquisitive prescription, there must be actions clearly indicating the heir’s intent to possess the entire property exclusively for themselves and to deny the rights of the other heirs.

Legal requirements

According to Art. 79, para. 1 of the Property Act, acquisitive prescription for immovable property is ten years in cases of ordinary possession and five years in cases of good faith possession with a valid legal ground. In inheritance cases, ordinary possession is most common, as the heir does not hold title to the entire property but only to their ideal share.

To successfully invoke acquisitive prescription, the heir must prove that they have possessed the property openly, continuously, peacefully, and with the intention to own it for at least ten years.

Case law

The Supreme Court of Cassation consistently emphasizes that for an heir to acquire property by prescription, they must prove the so-called “exclusion” of the possession of the other heirs. This can manifest through actions such as fencing the property, carrying out significant improvements with the knowledge of the others, renting out the property as their own, or explicitly opposing the rights of the other heirs. Mere use of the property or payment of taxes is insufficient, as such acts can also be performed by a holder.

Prescription and co-ownership

It is important to note that acquisitive prescription does not occur automatically. It must be recognized by the court through a claim of ownership. If the heir wishes to establish their right to the entire property, they must bring a declaratory action under Art. 124, para. 1 of the Civil Procedure Code and prove the factual circumstances that show exclusive possession.

Conclusion

Acquisition by prescription of inherited property by one heir is a complex legal mechanism that requires clear distinction between possession and holding, as well as proof of exclusive possession. It is possible, but only when there are clear acts denying the rights of the other heirs and after the statutory period has elapsed.

If you are facing such a case or experiencing difficulties in protecting your inheritance rights, it is advisable to seek assistance from a specialist. Attorney Mihail Tomov offers professional consultation and legal representation, helping you build the right strategy to protect your interests and ensure stability in your property relations.