Adverse possession is a legal principle that grants a person ownership of the property owned by someone else if the person meets certain requirements. Typically, these requirements include occupying, using and maintaining or improving a property owned by someone else for a specific amount of time. The concept has its origins in Roman law, and part of the underlying rationale behind it comes down to the fact that land is a limited resource; if one person is not taking good care of their land and properly attending to it then someone else should be given the opportunity to do so.
Adverse possession is different from an easement, in which a property owner explicitly grants certain rights, like permission to use a property or drive across the property, to someone else. The adverse nature of adverse possession consists in actual possession, with an intent to hold solely for the possessor to the exclusion of others, and is denoted by the exercise of acts of dominion over the property.
Adverse possession is not necessarily malicious, though — it can happen unintentionally. If neighbors, for example, build a fence one meter into someone else’s property and start using the land enclosed by the fence, they may eventually be able to claim adverse possession of that portion of someone else’s property. Similarly, if a neighbor plants a garden that accidentally oversteps the property line and takes care of it for the required length of time, he may be able to successfully claim adverse possession of that land.
Adverse possession requirements
In Poland, adverse possession leads to the acquisition of property by a possessor who have occupied a property for 20 years or 30 years if he has acted in bad faith.
The requirements for an adverse possession claim in Poland are as follows:
- Owner-like possession: The adverse possessor must physically possess the property in the meaning of the Polish law, not just walk on it, i.e., mowing or harvesting. The possessor making the claim must act as an owner-like holder of the property. This can include using the property, putting a fence, maintaining the structures on the property and even paying property taxes. According to Article 336 of the Civil Code the owner-like possessor of the property is a person who controls the property like the owner.
- Continuous use: The adverse possessor needs to hold the property continuously throughout the period.
- Hostile use: The adverse possessor must have used the land without the permission of the true owner.
- Exclusive use: The possessor making the claim must be the sole occupant and user of the property, act as the owner of the property and exclude others from using it (including the true owner).
- Open and notorious: The possessor making the claim must be forthcoming about his use of the property, instead of concealing it. It should be obvious to neighbors or onlookers that the possessor is using the property, and the possessor should be taking actions that the owner typically would, such as receiving mail there.
In Poland, the possessor making the claim bears the burden of proof. In other words, the possessor must show that his claim meets all of the requirements that constitute adverse possession.
What kind of property can be acquired through adverse possession claim
The types of property which can be the subject of adverse possession claim are as follows:
A room or a floor in the building cannot be the subject of adverse possession claim because a room or a floor is not a separate property in the legal sense.
How to prevent adverse possession claims
There are several ways to prevent claims of adverse possession. The first thing to do is to know precisely what do you own and take good care of your properties. Here are some further tips:
- inspect your sites regularly to make sure that there are no incursions; keep a good record of those inspections;
- investigate when the incursion first occurred; if necessary contact previous owners and speak with neighbouring land owners;
- put up a fence around your property or post a “no trespassing” sign; it always helps;
- if you discover that someone has encroached on your property, take urgent steps to remove them; this includes writing to them and issuing possession proceedings if the need arises; any action taken before the Polish court leads to the interruption of the adverse possession process which is sometimes decisive;
- if there is a dispute as to the boundary of a property, consider obtaining a boundary surveyor's report; a survey can turn up any issues, such as a misplaced fence, before they lead to claims.
To discuss how best to stop the process of adverse possession in Poland, please contact our litigation team.
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