Under Polish law, adverse possession is a legal concept where someone who does not have legal title to real property and who did not buy it can become its legal owner. They do this by possessing it for a long enough period to override the interests of the original owner.
It is called adverse possession because it goes against the concept that someone who occupies land should either legally own it or have permission from the legal owner.
While adverse possession may sound simple, it is far from it in practice. The applicant (i.e. the one seeking adverse possession) should demonstrate that:
- he had factual possession of the property for 30 years (or 20 years if he has been acting in good faith);
- he had intention to possess the property as the owner;
- the possession was open and notorious; and
- the possession was continuous and uninterrupted.
The application must be accompanied by supportive evidence demonstrating the possession of the property for 30 years, documentary evidence, witnesses etc.
It is relatively easy to prove the factual possession of a building if we are talking about the building as a whole. But in the case of co-ownership of the building it gets really complicated because one co-owner tries to prove his rights against the other co-owner.
So, 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 look after your property. You should ensure that your property is registered with land and mortgage register in Poland. This includes property which has been bought, inherited or been given. 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 neighboring 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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