Have you heard about adverse possession?

Δημοσίευση: March 12, 2024

1.What is adverse possession?

Adverse possession is the way in which a person can acquire ownership of a property simply by occupying it (= exerting control over it, believing it belongs to them). The practical significance of this institution is that it allows someone who is not the rightful owner of the movable or immovable property to acquire it, even if for some reason the transfer contract (by which they should have acquired it) was invalid for any reason. Also, given that in Greece until now the Cadastre does not operate in several areas, it is not always clear who owns a property. Therefore, it would be unfair for the person who has leased the property for a sufficient period of time to relinquish ownership and thus overturn a situation that is formally established.

It is worth mentioning that the law distinguishes between two types of adverse possession, regular and extraordinary, which we will analyze below.

2.What is required for regular adverse possession?

Regular adverse possession is the legal status by which someone leases a property based on a title that is, however, invalid for any reason and therefore under normal circumstances would not acquire ownership of the property (since the conditions set by the law would not be met).

Therefore, for someone to become the owner of a property with the qualifications of regular adverse possession, the following cumulative requirements are required:

The property must be susceptible to adverse possession (not public property, forest land, church property, etc.).
Adverse possession must be exercised on the property.
The title must have been transferred, which, although invalid, establishes the right of adverse possession (e.g., if it is a sales contract that was void because the property was transferred by a minor and therefore did not have the legal capacity required by law).
The acquirer must act in good faith regarding the adverse possession of the property (= when they do not ignore due to gross negligence that they are not the rightful owner of the property).
A necessary period of time must have elapsed (3 years for movable property, 10 years for immovable property).

3.And for extraordinary adverse possession?

Unlike regular adverse possession, in extraordinary adverse possession, some requirements are omitted to establish the right of adverse possession:

Firstly, the property must be susceptible to adverse possession, as mentioned above.
The acquirer must simply exercise adverse possession of the property.
There is no requirement for good faith (so it does not matter what the acquirer believes about who owns the property).
A period of 20 years must have elapsed since the commencement of adverse possession.
There is no requirement for a title (and consequently no transfer of it).

It is true that extraordinary adverse possession has simpler and more easily provable requirements compared to regular adverse possession, and it is a useful solution for cases where the acquirer cannot prove the requirements of regular adverse possession (e.g., during the interim period they learned that the property belonged to someone else), so it is sufficient to simply prove continuous possession over a period of 20 years.

4.Can I calculate the time someone else possessed the property?

It is not uncommon for someone to start adverse possession on a property but either dies and their heirs continue the adverse possession or transfers the property to a third party who also continues the possession with the qualifications of adverse possession. The rule is that the successor of the person who initially possessed the property through adverse possession can include this period of time in their own possession of the property. So, for example, if the father possessed the property for 7 years through adverse possession and then died, his children, if they possess it for an additional 3 years, will acquire ownership of it (7 + 3 = 10 years required by law for regular adverse possession), provided they also prove the possession exercised by their father. However, all this with one condition: that the person who initially possessed the property was acting in good faith because otherwise a basic requirement is not met, and the good faith of their successors does not compensate for the lack of good faith from the beginning.

The same rule applies to extraordinary adverse possession, with the difference that it is not necessary for the person who initially possessed the property to have been acting in good faith (this does not concern us here), and thus in every case, the successor can include this time in their own possession of the property. All that is required is to continue to exercise possession of the property through management actions.

5.What if I later learn that the property belongs to someone else?

As mentioned earlier, a prerequisite for regular adverse possession (and only regular) is that the possessor of the property must act in good faith regarding the belief that it does not belong to someone else. Indeed, according to the law itself, the person who wants to acquire the property must be acting in good faith at the moment they acquire possession of it through acts of control (e.g., when they fence off the plot). Therefore, if the possessor later realizes that the property belongs to someone else, they will eventually acquire ownership of the property through adverse possession (provided that the other requirements are met).

Furthermore, the possessor must also act in good faith regarding the title that gives them the right to possess the property. For example, if A transferred a plot of land to B, but in reality, A was never the owner of the plot (because it belonged to his brother), in this case, if B believes that A was the owner of the plot and therefore the transfer ‘was not a problem,’ then B is considered acting in good faith regarding the title, as required by the conditions of regular adverse possession.

Our courts always consider it a serious negligence if the buyer does not check the property transfer books to see who owns the property, which excludes good faith in their person. However, it is possible that they did check them, and it was mistakenly registered under another person’s name, or it was not clear which property it referred to.

6.What are considered acts of possession?

The distinction is crucial because through acts of possession, the acquirer demonstrates the intention to control the property with the belief that they are the owner, and thus, they are doing exactly what the owner would do. Therefore, indicative acts of possession include:

Placing wire mesh to fence off the plot.
Renovating the apartment.
Dividing the property into smaller sections (subdivision).
Placing a sign indicating that the property is for sale.
Collecting rent if the property was already leased and leasing it.

It is also important to note that the exercise of possession is not interrupted by shorter periods during which the possessor temporarily ceases to exercise it (because they are absent, for example, for a short trip abroad while it can still be exercised through another means (e.g., the acquirer assigns their children to carry out renovation work in the apartment they want to acquire through adverse possession).

7.Do you know when squatter’s rights began?

Quite often, courts encounter cases where the squatter began to possess the property through adverse possession before the introduction of the Civil Code in Greece, i.e., before 23/2/1946. If this seems strange to you, you will be surprised by how many people continued the adverse possession that their parents/grandparents started and tried to count this time as their own adverse possession time.

Before the Civil Code, for adverse possession, the possessor had to possess the property for 30 years to acquire it through adverse possession.
If this period had been completed before the introduction of the Civil Code (1946), then the conditions for adverse possession were met, and the possessor became the owner of the specific property.
If, on the other hand, the time had not been completed until then, then from 1946 onwards, a new 20-year period begins, during which the possessor must equally possess the property to acquire ownership through adverse possession.”

8.What will change with the Cadastre?

With the gradual expansion of the Cadastre throughout Greece and the public trust placed in the entries contained in the cadastral records regarding each property, it becomes apparent that whoever acquires possession of a property based on the trust given to what is recorded in the relevant cadastral record will acquire ownership in this way. This is because there is a presumption of accuracy of the cadastral records by law, and thus it is inferred that whoever is registered as the owner of the property is presumed to be the owner, even if they may not actually be. This has some practical consequences:

The significance of regular adverse possession (with good faith, etc.) is practically limited because now the acquirer will be able to establish ownership of the property based on being listed as the owner in the Cadastre without needing to prove adverse possession conditions.
The actual owner of the property will be able to take legal action against the person listed as the owner, such as an action for unjust enrichment, provided the conditions are met, and they can challenge the Cadastral registration within the deadline.
In the case of extraordinary adverse possession, the person seeking to establish ownership of the property based on adverse possession must submit certain documents (such as a court decision, documents proving possession of the property, utility bills) to ensure that the declaration in the Cadastre is done correctly.

9.Someone has taken over my property through adverse possession. What can I do?

It is crucial to know when adverse possession began (it starts from the day after the transfer or from the first act of possession) in order to understand if it has been completed or is about to be completed soon. Thus, the original owner of the property can terminate the adverse possession of the squatter by:

filing a lawsuit against them, seeking the return of the property
ejecting the squatter from the property (if the aforementioned lawsuit is accepted)
autonomously taking possession of the property from the true owner, and thus ejecting the other accordingly

Contrary to the above, if the squatter has already acquired ownership of the property through adverse possession, then they are now the owner, and the previous owner is no longer entitled to file a lawsuit for unjust enrichment to demand the return of the benefit because the legal ground for maintaining the enrichment is adverse possession itself.

10.What happens when I acquire ownership through adverse possession?

When the conditions for adverse possession are met by the possessor, two things happen:

They acquire ownership of the property for as much as they possessed it, but not more than that.
The property becomes free from encumbrances held by third parties (thus, mortgages and liens held by third parties on the property are lost).

However, for the second point to be valid, the possessor must have met the conditions for adverse possession regarding encumbrances as well (meaning they legitimately believed that these did not exist and, at the same time, these encumbrances existed before the start of adverse possession). If the encumbrance is established for the first time after the possessor acquires ownership of the property through adverse possession, then obviously it is not lost. Thus, in essence, it involves two adverse possessions that occur concurrently and may be completed at different times (e.g., if one is interrupted, etc.).

Next to the client and his needs.

Athina Kondogianni-Lawyer

The above does not constitute legal advice, and no liability is assumed for it. For more information, please contact us.