On the admissibility of usucaption of a non-separated premises, as a new perspective on the institution of usucaption of premises

Abstract

The purpose of the article is to consider the possibility of acquiring a separate ownership right to an undivided premise or a part of previously divided premise through adverse possession (usucaption). This subject demands a fresh perspective, given the consistent unified stance of both the judiciary and legal scholars, who have traditionally considered such adverse possession as inadmissible. The examination gains particular significance in light of the approaching 30th anniversary of the enactment of the Act of 24 June 1994 on the ownership of premises, as this may result in an increase in litigation related to adverse possession claims concerning entire premises or their parts. Contrary to the long-standing established position of both jurisprudence and legal doctrine, the article demonstrates that acquiring separate ownership rights to previously undivided premises, as well as to parts of previously divided premises (such as rooms, auxiliary spaces, or ancillary facilities), is indeed feasible through usucaption. In both cases, compliance with the requirement of independence as defined in Art. 2 sec. 2 of the Act on the ownership of premises is crucial since only independent premises may be the subject of separate ownership. The argument presented in the article strongly advocate for the possibility of providing legal protection to possessors of undivided premises or parts of divided premises and for regularizing long-standing factual situations that do not align with the current legal status, which is the fundamental essence of adverse possession.