Usucaption

Adverse possession (Latin usucapio ), the acquisition of things in the sense of civil law by lapse of time and self- possession.

• 3.1 Actual Adverse possession
• 3.2 Improper adverse possession 3.2.1 " Freiheitsersitzung "

General

Property can be acquired in various ways. The adverse possession is one of them. Who " ersitzt " a thing that previously possessed over a certain period of time in a specific way ( hence the name: qualified property). Possession and ownership are not the same from a legal perspective.

The following example like the adverse possession clarify: If it turns out that disposing of a thing neither whose owner was has been or otherwise may dispose of the matter, the purchaser of a transaction may be with the " seller " on the object of the transaction, although at best, the possession gain, but not the ownership thereof. So is a derived from the previous owner ( derivative ) property rights, failed, so the owner can still be bought at the thing under certain conditions property. This then is a stand-alone ( original ) purchase.

After the Ersitzungsfrist the object belongs to the Ersitzenden. The previous owner loses his right. He is also entitled to no compensation claim against the purchaser.

German law

The adverse possession is a type of legal acquisition, especially the acquisition of ownership to property in the legal sense. Their significance is reduced in German law in comparison to other jurisdictions, because the German law the acquisition in good faith of movable property knows, see also assignment. Therefore, the scope of adverse possession is limited almost to the owner of lost movables. Thus, the bona fide owner can also acquire ownership of stolen property. This was in accordance with the laws of the Twelve Tables in Roman Law is not possible, as in the Institutes of Gaius, 2:45 Plate XII 8.17 demonstrated. Stolen items were under Roman law " unersitzbar ".

Movable property (§ § 937-945 BGB)

Who decade honestly individually owned ( § 872 BGB) has a movable thing acquires the property under German law ( § 937 BGB). Thus, the adverse possession gives the person who is kept within a certain time period honestly for the owner, without this to be real about because the purchased thing was, for example, has been lost another title if he has all the time as obsessed him seriously the matter.

The law thus eliminated after the expiration of Ersitzungsfrist the discrepancy between alleged and true legal position and reflects the fact that after a long time considerable difficulties of proof be made ​​, nor clarify the circumstances of the property loss during the previous owner.

The acquisition of the property arises from the so-called " steady-state " or " Kontinutätsinteresse " of its own owner. Redlich is the Ersitzer only when he was both the acquisition of the property and during the Ersitzungsfrist in good faith to his property. It even hurts when ownership is acquired, the grossly negligent ignorance, that he has acquired no property.

The adverse possession leads to the acquisition load-free property ( § 937 BGB).

It is disputed whether the adverse possession leads to unjust enrichment claims. The problem here is whether the acquisition of property is without legal basis within the meaning of § 812 BGB. The Act contains no reference to the law of unjust enrichment as defined in § 951 / § 977 BGB. One other view is that there is a right of Leistungskondiktion when the self- possession had been obtained after a failed power relationship with the previous owner. In this case is about § 818 I BGB the publication of the matter may be required. It is disputed also whether a Eingriffskondiktion that is only based on the loss of property, come into consideration. The practical importance of going back to the decision of the Supreme Court in RGZ 130, 69 literature hassles is only slight.

Property

The ownership of a property can also be adverse possession. Here we speak of the so-called "Book " or " Tabularersitzung ". According to German law ( § 900 BGB), this requires that the person in whose favor the adverse possession to be effective for 30 years

• Is the registered owner, and - without authorization - in the land register
• The land had actually individually owned. On a good faith belief it is there - unlike movable property - not to. Under the same conditions an adverse possession is in the possession of qualifying property rights possible (eg easement ).

According to § 927 BGB, a possessor in the squad method obtain a judgment exclusion, which excludes the owner from his right, and to acquire by registration in the Land Register ( Kontratabularersitzung ).

Austrian law

The adverse possession is in Austrian law, both a type of the original property acquisition as well as a possibility of legal acquisition of a servitude.

The adverse possession comes in the following forms:

Actual adverse possession

It is the " classic " form of adverse possession, which requires " Ersitzungsbesitz " (ie legitimate, bona fide and real estate). It is characterized in that it replaces the missing property of the foreman by the passage of time. The Ersitzungsfrist is to movables 3 years, 30 years for immovable.

The qualified by legality, integrity, and authenticity property is specifically protected by the Actio Publiciana.

Improper adverse possession

It requires only bona fide and genuine possession. A title ( for example, purchase, exchange, donation), so rightful ownership is not required. The Ersitzungsfrist is here, regardless of the mobility of the thing, 30 years.

In this way can also servitudes, such as roads or driving rights, be adverse possession. Prevents the owner of a property 30 years through not for example the use of a path by the neighbors, so it comes to (except registry charge ) Acquisition of title to the easement. To bona fide acquisition -load corresponding to the negative publicity principle - which is not registered, does not apply - to prevent here is the earliest possible registration recommended.

" Freiheitsersitzung "

If an easement ( " easement " ) has been adverse possession in the above sense, the owner of the thus -loaded ( " serving " ) land but the exercise of the easement actually disabled ( by, for example, he shuts off the Servitutsweg or impassable does ), this disappears easement by three years. To prevent this, a court action must be received before the deadline.

Also, easements, which were not acquired by adverse possession, will go out by Freiheitsersitzung. If the easement is registered in the land register, the land registry status, on the expiry of three years from the establishment of the obstacle incorrect (because the easement is registered under gone through Freiheitsersitzung ). The owner of the serving property may sue for cancellation of the obsolete entry.

As long as an extinguished easement has been entered in the land register, it can be acquired in good faith in reliance on the basic book stand. Good faith presupposes, however, that is not apparent to the purchaser that the exercise actually precludes an obstacle.

Practical significance

Since the actual adverse possession lawful possession, so a title like purchase, exchange or gift requires, it is there important where product could not be a good faith acquisition by non-entitled ( for example, was because not acquired by tradesman ): The example purchaser of a chattel has neither primarily derivatively acquired, nor secondarily acquired in good faith, but may ultimately - honesty throughout the entire period of course assuming - after the expiration of three years to acquire by adverse possession property.

For properties, it may happen that the property is indeed passed, the incorporation into the land register, however, does not occur. Thus, the transferee ownership has indeed (Natural possession ), but not purchased property. After the 30 -year period, he becomes the owner by adverse possession ( außerbücherlich ). In the meantime he is, provided he is the rightful owner, by the Actio Publiciana ( Austria ) protected vindikatorisch as negatorisch.

Swiss law

The acquisitive prescription of movables is governed by Article 728 of the Civil Code, this holds:

Pets are allowed for a Ersitzungsfrist two months is set, for certain cultural goods for 30 years.

The adverse possession of real property govern the articles 661-663 of the Civil Code, which it distinguishes between the Ordinary and the Extraordinary Adverse possession Adverse possession:

These cases of adverse possession of real property ( inclusive of adverse possession of permanent and independent rights under Art. 655 II 2 of the Civil Code and easements under Art. 731 III CC) are listed exhaustively. The Swiss law so provides in contrast to German law does not provide Kontratabularersitzung of real property.