Prescription and common parts: when a basement can be acquired and when the land in a condominium

Prescription in property law is a way to become an owner after prolonged and undisturbed possession “as one’s own.” For immovable property, ownership is acquired by prescription after ten years of continuous possession, and when possession is in good faith, the period is five years. This is the general rule that frames any analysis concerning the “basement” and the “land” in a condominium.

When speaking about a basement, it is essential to distinguish whether the cellar premises are appurtenant to a separate apartment (forming part of the individual ownership) or constitute common premises for all. The Ownership Act expressly lists the common parts in a condominium: the land and the yard, load-bearing structures, staircases, roofs, common installations, and “everything else which by its nature or purpose serves for common use.” Common parts cannot be divided. If a basement-type room is designated and used as common, it falls under this regime; if, however, it is individually designated as appurtenant to a specific apartment, it is private property of that unit’s owner.

The case-law of the Supreme Court of Cassation accepts that there is no general statutory prohibition for a basement to be acquired by prescription, provided it is an individual (appurtenant) room and the possessor has exercised factual control over it openly and exclusively as an owner for the statutory period. The Court has repeatedly emphasized that where a co-owner (or another owner in the building) invokes prescription over another’s ideal share, they must, through external and unequivocal acts, convert holding into possession and deny the rights of the others—this is the general interpretative rule for co-owners, applicable also to appurtenant premises.

Regarding the land (the plot/yard), the starting point is different. As a rule, the land on which the building stands and the yard constitute common parts of all owners in the condominium. This follows directly from the law and means they are held in ideal shares and cannot be divided in kind. The Supreme Court, however, underlines an important caveat: the land is not always a common part. When the building is erected on another person’s land under a right to build (superficies), the owners of the self-contained units do not have ideal shares in the land—the plot belongs to its owner, while the unit owners derive their rights from the right to build.

Can the land, as a common part, be acquired by prescription by an individual owner in the building? As a physically separated part—no, because common parts are not subject to partition and separate formation. In principle, acquisition by prescription of ideal shares among co-owners is possible, but only if the possessor has demonstrated lasting and unequivocal intent to exclude the others (the so-called conversion of holding into possession), which in practice, for a yard and land, is extremely difficult to prove. This follows from the interpretative case-law on co-ownership and the rules of Article 38 of the Ownership Act on common parts.

There is also a firm limit: property that is public state or municipal cannot be acquired by prescription. If the land is of this type (for example, public municipal property), prescription is excluded by law. This prohibition applies regardless of who physically possesses the place and for how long.

In summary, for a basement you must first determine its status—common part for common use or an individually appurtenant room. Only in the latter case is acquisition by prescription possible, if possession as an owner is proven for the statutory period. For the land, the law treats it as a common part by default; an exception is the right-to-build scenario, where the land is not a common part of the unit owners. Acquisition by prescription of a physically separated part of the yard by a single owner is not admissible; acquisition of ideal shares is conceivable only under very strict proof of exclusive possession vis-à-vis the others. Always keep in mind the absolute prohibition concerning public state or municipal property.

If you or a close person faces a similar situation, it is best to consult a lawyer specializing in property law who can advise you and represent you in court if needed. This article does not constitute a legal opinion or legal advice by adv. Mihail Tomov , nor is it connected with a specific situation or person. For legal assistance regarding acquisitive prescription or other property-law matters, a legal consultation with a lawyer is required.