Civil legislation provides for a method of acquiring ownership of property with long-term and conscientious use - acquisitive prescription. This method of obtaining property is possible in relation to both movable and immovable property. Acquisitive prescription for an apartment gives the right to the actual owner to register it as his own, but this is not easy to do. In this article, we will tell you the order in which the process of obtaining property on such a basis occurs, how long-term and bona fide ownership can be proven, and also consider examples from judicial practice in cases of acquisitive prescription.
What is acquisitive prescription for an apartment?
Acquisitive prescription is a period established by law, after which a citizen who actually uses real estate can take ownership of it without being its legal owner during the period of use.
Article 234 of the Civil Code of the Russian Federation establishes that if a citizen has actually owned real estate for 15 years, a citizen can claim rights to such property due to the prescription of its ownership. It is also worth noting that the limitation period is added to the established period, which is three years.
However, in order for such a right to be recognized as the actual owner, certain conditions must be met:
- Term. Only after the deadline specified in the law has passed, a citizen has the right to file a claim in court for recognition of his property rights. There are no legal provisions for reducing the tenure period.
- Judicial order. The right of ownership due to acquisitive prescription can be recognized only through the court.
- Ownership requirements. The applicant to take ownership must prove that he owned the property:
- openly - without hiding the fact that the property does not belong to the user and leave it visible to others;
- in good faith - if the citizen did not know that he had no grounds for the emergence of property rights to receive it and was convinced of his right to use it;
- continuously - throughout the entire period, only one citizen used the property and did not transfer it to other persons.
Reference!
The acquisitive limitation period begins to count from the moment when another person actually began to own the thing. However, the specified period does not count the time when the use of the property was carried out on the basis of any contract or agreement. The law also provides for the possibility of including in the statute of limitations the period when the property was owned by another person from whom the citizen accepted the property.
Conditions of acquisitive prescription
It is obvious that by taking possession of property by unlawful means, such as, for example, concealing documents or seizing space, contrary to the will of the legal owner, the possibility of applying acquisitive prescription is excluded. But if you owned real estate in good faith, for example an apartment, that is, you did not hide the fact that you lived in it, allowed guests in, paid bills on your own behalf, carried out current and major repairs - then there is a way out, and this is the possibility of obtaining rights through the rules on acquisitive prescription.
- statute of limitations for acquisitive limitation: you must use the real estate so that there are no interruptions in residence for fifteen consecutive years;
- live not on the basis of a lease agreement (click on the link you can get acquainted with an advantageous offer for drawing up any agreement on our part) or other agreement with the owner, do not hide from anyone that your use is not backed by written documents giving you the right to housing ;
- own the apartment in good faith, that is, not know that there is no basis for the emergence of your ownership rights.
The procedure for registering ownership of an apartment by acquisitive prescription
Considering that cases of calling up ownership rights to an apartment due to acquisitive prescription are considered only in court, the procedure for exercising the rights of the owner should be carried out in the following order:
- Preparation of necessary documents and evidence.
- Filing a claim.
- Payment of state duty.
- Submitting an application and documents to the court.
- Participation in court hearings.
- Obtaining a court decision.
- Registration of property rights when a decision is made in favor of the plaintiff.
Before deciding to start a lawsuit, we recommend making sure that there are no claims to the property from other persons who have legal grounds (for example, the heirs of the owner).
Preparation of documents for going to court
The applicant for property must attach the following documents to the statement of claim:
- passport;
- existing documents for the apartment;
- any papers confirming the 15-year period of use of the property;
- calculations of the cost of the claim, a certificate of cadastral value of the apartment, technical plan of the residential premises;
- receipt of payment of duty.
These are just the basic documents. The exact list of documents can only be determined based on each specific situation.
What is evidence of acquisitive prescription?
The burden of proving that all requirements for the application of acquisitive prescription have been met lies with the plaintiff.
He may provide the court with the following evidence of his right:
- documents confirming receipt and payment of utilities by the actual owner;
- contract for the protection of the property concluded by the applicant;
- documents confirming that the owner has carried out repair work at his own expense;
- witness statements;
- agreement on the transfer of apartments for rent to other persons on behalf of the actual owner;
- other evidence relevant to the case.
The evidentiary procedure is the most difficult stage in such cases, so it is worth involving an experienced lawyer in the case.
Drawing up a statement of claim
When the subject of the claim in cases of acquisitive prescription is an apartment or house, the application can be addressed to the owner of the property. If there is no information about the owner or he is not known to the actual owner, then he has the right to submit an application to the court to establish the fact of ownership of the property during the period of acquisitive limitation. In this case, the registrar of Rosreestr is involved in the case by a third party (Resolution of the Plenum of the Armed Forces of the Russian Federation dated April 29, 2010 No. 22).
If the actual owner lays claim to property that is not accepted by the heirs and is considered escheated, then the municipal administration may be brought in as a defendant.
In addition to the general requirements for drawing up an application, provided for in Article 131 of the Code of Civil Procedure of the Russian Federation, a statement of claim for recognition of ownership rights due to acquisitive prescription must contain the following information:
- information about the beginning of the period of ownership of property of which the citizen is not the owner;
- an indication of bona fide, continuous and open ownership of the residential premises and how these conditions are confirmed;
- describe the circumstances of receiving the property into possession;
- if the property was received by succession, then it is necessary to refer to evidence of this fact;
- all information known to the applicant about the property.
The successful outcome of the case depends on a competent presentation of the circumstances of the case and their documentary substantiation, so the preparation of the statement of claim must be approached seriously.
Payment of state duty
Applications for recognition of property rights in connection with acquisitive prescription relate to claims of a property nature, therefore, when paying the state duty, the rules provided for in Article 333.19 of the Tax Code of the Russian Federation apply to them.
For each case, the fee will be calculated based on the value of the property claimed by the applicant, which is determined based on the cadastral value of the property, its inventory value or the assessment of the property.
Thus, the calculation of the state duty will be as follows depending on the cost of the claim:
- up to 20 thousand rubles. – 4% of the cost of the object, but not less than 400 rubles;
- from 20 thousand rubles. up to 100 thousand rubles. – 800 rub. + 3% of the amount over 20 thousand rubles;
- from 100 thousand rubles. up to 200 thousand rubles. – 3200 rub. + 2% of the amount over 100 thousand rubles;
- from 200 thousand rubles. up to 1 million rubles – 5200 rub. + 1% of the amount exceeding 200 thousand rubles;
- from 1 million rub. – 13200 rub. + 0.5% of the amount over 1 million rubles, but not more than 60 thousand rubles.
Payment of the state duty can be made at any bank branch or terminal using the available court details. Details can be found on the website of the court to which the application is sent.
Going to court
After collecting documents and preparing a claim, the citizen sends the documents in any way convenient for him - by mail, in person or through a representative by proxy. In accordance with Part 1 of Art. 30 of the Code of Civil Procedure of the Russian Federation, claims for rights to real estate are sent to the district court at the location of the disputed property (if the plaintiff is an individual).
During the consideration of the case, the applicant for the property may file a petition to call witnesses, since often in such cases only witness testimony can confirm the integrity of the actual owner and his compliance with the conditions of acquisitive limitation.
Obtaining a court decision
A court decision that has entered into legal force, by which the fact of ownership of the property as one’s own is confirmed, gives the applicant grounds to apply to the registration authority to register ownership of the property (Article 268 of the Code of Civil Procedure of the Russian Federation).
Continuity of ownership and its characteristics
Continuity of possession of an object in respect of which a claim is filed for recognition of ownership rights to it is interpreted literally by the judicial authorities. The tenure period established by clause 1 of Art. 234 of the Civil Code of the Russian Federation, should not be terminated or interrupted (paragraph 5, clause 15 of resolution No. 10/22).
To establish the fact of continuity, documents must be submitted to the court for the entire period of ownership that will confirm this. Eg:
This is important to know: Is a mortgaged apartment a property?
- contracts with public utilities;
- tax payment receipts;
- payment documents indicating constant payments for the maintenance of housing and its operation;
- other documents from the contents of which it can be determined that the plaintiff owned the property for the required period.
Risks! If during the ownership of property there are periods when a citizen or organization could not use and exercise ownership of the property due to any circumstances, then the claim may be denied. Moreover, a plaintiff's assertion of continuity of ownership may be questioned if there is no documentation of ownership during certain periods (for example, lack of utility payments).
Note! Continuity is not violated if the owner transferred the disputed property for temporary possession to third parties, for example, for rent (clause 15 of resolution No. 10/22).
Arbitrage practice
Acquisitive prescription cases are quite complex to consider, which is why judicial practice on them is so diverse.
The most difficult issue that requires clarification and confirmation during the trial is bona fide ownership. The boundaries of good faith ownership are affected by the ruling of the Supreme Court of the Russian Federation dated September 17, 2019 No. 78-KG19-29. Often, trial courts regard possession as in bad faith if the plaintiff knew who owned the shares in the residential premises of which he owns part. However, higher courts usually have a different position, especially when the plaintiff, the shareholder, owns the entire apartment, and the owner of the disputed share does not show interest in it and does not bear the costs of its maintenance.
In addition, the Supreme Court notes the trial courts' misinterpretation of continuity of possession. When refusing to satisfy the claims, the courts refer to the fact that the plaintiff used the real estate periodically. However, ownership and use are not equivalent concepts. Therefore, if the plaintiff did not use the property for some time (did not reside temporarily), but took care of it and bore the burden of maintaining it, then possession of it does not cease (joint resolution of the Plenum of the Armed Forces of the Russian Federation and the Plenum of the Arbitration Court of the Russian Federation dated April 29, 2010 No. 10/22) .
Thus, when going to court, the plaintiff must be aware of the importance of the evidence base in the case and compliance with the conditions of acquisitive limitation.
Does acquisitive prescription apply to a municipal apartment?
In cases of recognition of ownership rights to municipally owned residential premises, due to acquisitive prescription, the existence of a contractual relationship with the user of the apartment is decisive.
If living in municipal housing on the basis of a social tenancy agreement, lease or free use, a citizen cannot apply for registration of ownership of the residential premises on the specified basis.
However, residence by the actual owner, subject to his bona fide possession, may serve as the basis for recognition of his ownership rights in the event of the death of the legal owner, who has no heirs or who do not claim their rights to the property.
In judicial practice, there are quite a few cases of rulings in favor of the plaintiff in cases of recognition of the right of ownership of escheated property due to acquisitive prescription, which in its legal status is municipal.
Is it possible to recognize ownership by acquisitive prescription of a share in an apartment?
There is no direct indication in the legislation of the possibility or impossibility of recognizing ownership of a share in an apartment.
At the same time, judicial practice on this issue is also ambiguous. The right of an applicant to a share in real estate due to acquisitive prescription is considered by the court individually, depending on the circumstances of the case, and even similar circumstances are interpreted by the courts differently. Thus, in 2021, the Khabarovsk Regional Court rejected citizen L.’s claim in the administration of the municipality to recognize her rights to a ½ share in a one-room apartment due to acquisitive prescription. The plaintiff accepted half of the apartment by inheritance; the second half was not accepted by anyone after the death of the owner. For 16 years, citizen L. owned the entire apartment as her own.
In rejecting the claims, the court referred to the fact that citizen L. did not own the share in good faith, since she knew that she had no rights to this property.
However, the Supreme Court overturned the decision and sent the case for a new trial, having established that the share of the deceased is escheated property and, according to the law, the municipality is considered its owner, but the inheritance was not formalized and actual ownership of the apartment was not exercised.
The Supreme Court also noted that the right of ownership can be recognized not only for ownerless property, but also for that which belongs to another person. Therefore, the fact that the share belongs to a municipal entity is not an obstacle to the application of the provisions of Article 234 of the Civil Code of the Russian Federation and cannot indicate that the plaintiff owned the residential premises in bad faith.
However, in another similar case, the court of the Volgograd region refused to satisfy the plaintiff’s appeal, believing that the escheated share in the residential premises was not ownerless and belonged to the municipality, even though it was not properly registered and was not used by the owner.
In addition, in judicial practice there are cases of recognition of ownership rights to a share owned by an individual, but who does not take any measures for its use and ownership, for the remaining owners of a residential building (court decision of the city of Chistopol, Republic of Tatarstan dated February 28, 2020).
It is impossible to come to an unambiguous conclusion whether it is possible or impossible to recognize ownership of a share in a residential premises. The outcome of the case will depend entirely on its circumstances and the court's position on this issue.
Judicial practice on acquisitive prescription
A case from our legal practice that ended in a win in favor of the plaintiff:
V.’s family consisting of I.V. and S.V. in 1994, an apartment was given to them by a trust, but they were not given any documents when entering this apartment. Later, the residents were registered at their place of residence. Currently, two children live with them. From the moment they moved into the apartment, the family paid bills for heat and electricity. She independently bore the costs of maintaining the house. During this entire period, the owner of the residential premises did not make any claims regarding the apartment. Since the family openly, conscientiously and continuously owned the apartment for 15 years, they wanted their ownership rights to this property to be recognized, since they have such a right. No one has ever attempted to challenge their rights to this apartment. V.’s family had no other housing, and there was no possibility of purchasing it.
Based on the provisions of the Constitution of the Russian Federation and the norms on acquisitive prescription, the court made a decision to recognize the V. family’s ownership of this apartment, which allowed them to register the right to property in the Office of the Federal Registration Service for the Sverdlovsk Region. So, with our help, the family was able to become the full owner of their home, and you also have this opportunity by solving the problem of acquisitive prescription for property.
Tips on how not to lose your home
Long-term actual possession of residential premises makes a citizen think about the possibility of using it legally.
Especially if he invested a lot of effort and money into its maintenance. It is worth remembering that when living in someone else’s home you must:
- keep receipts, checks, contracts confirming repair work;
- pay utility bills and save receipts;
- do not interrupt the period of ownership of such property (do not leave it ownerless);
- do not hide the fact of home ownership.
Often, residential premises that citizens actually own for a long period of time are their only home. In this case, it is especially important to prove your bona fide ownership of such property.
