Justification of Acquisitive Prescription in the Civil Law System. Why is It Not an “Uncompensated Deprivation?

Silvana Dode

doi:10.26417/ejis.v1i3.p170-186

Abstract

Acquisitive prescription (a civil law institute) and Adverse Possession, its equivalent in the common law system is alreadya consolidated private law institute. It is recognised from the legal systems of almost each country in the world and is among the most important original ways of gaining ownership.Its constitutionality and the fact that should it be recognized from a legal system or not was brought in question in 2002, sparking a debate between lawyers in the world. The debate rose after the announcement of the decision of the ECHR (European. Court of Human Rights) in the case JA Pye ( Oxford) Ltd vs Graham. The Fourth Chamber of the ECHR held that acquisitive prescription is actually an 'uncompensated deprivation. First, we will analyze the main theories on the basis of which this institute is justified. The question to be raised for the review of the article is whether prescription is morally and legally justified, especially in the case of prescription in bad faith. In the end, it will be reached the conclusion that there are justified reasons for the prescription and it is a very useful institution inthe civil circulation. But preliminary stricter legal criteria must be met for the recognition of the property right by prescription, especially in the case of bad faith prescription. The law should aim to provide a greater protection to the legitimate owner.

Highlights

Acquisitive prescription and Adverse Possession, its equivalent in the common law system is alreadya consolidated private law institute. It is recognised from the legal systems of almost each country in the world and is among the most important original ways of gaining ownership.Its constitutionality and the fact that should it be recognized from a legal system or not was brought in question in 2002, sparking a debate between lawyers in the world
Preliminary stricter legal criteria must be met for the recognition of the property right by prescription, especially in the case of bad faith prescription
This theory is sharply criticized by scholars, because it represented a solid basis to justify the prescription before the XX century. This justification can not be still valuable in the XXI century, where the primary purpose of the society is not the encouraging of the exploitation of land use, but its usage in the most productive way possible (Stake, 2001). Another critic of this justification is based on the fact that in civil law as well as in the beginning of the application of this institute in the common law, the holder is not obliged definitely to invest on the property to win its ownership with acquisitive prescription.It is sufficiently for him to act as the owner, to care for its maintenance and use it.In thse cases, back the exploitation could even lead to reductions in the market value of the real economy

Summary

Authors for and against acquisitive prescription

By encouraging owners to exercise their right of ownership, AP promotes and facilitates transition of ownership transactions..5This excuse has been criticized by one of the judges of the casePye vs. Judge Neuberger says there is no reason to deprive an owner of his property (and especially in the case of land, where the consequences of deprivation are very high), just because he has allowed his property to be used by someone else .This has thought evenDockray “Why should it protect a wrongdoer – a person whose conduct might be tantamount to theft – but whom the law may aid even against an innocent owner, that is, a person who did not know and could not have discoveredthat time had begun to run? Despite the criticism this still remains one of the most valuable excuses today for AP, especially in the case of possession in good faith

Legal security

Economic Justification

Moral Justification

IX.CONCLUSION