Court Procedure Regarding Adverse Possession of Real Estate

It often happens that we use a property owned by someone else for an extended period as if it were our own, and in doing so, we may acquire ownership through adverse possession.

We may feel hopeful when we hear about the concept of adverse possession; however, the strict set of legal requirements prescribed for it is less well-known. Here is a simplified overview of the essential procedural rules related to it!

Adverse possession is an original way of acquiring ownership, intended to provide legal protection to a possessor who uses a property continuously for a prolonged period under the conditions prescribed by law if the owner does not exercise their ownership rights for a long time.

In Transylvania, where the cadastral-based land registry system maintains property records, the adverse possession period may be 5, 10, 20, or 30 years, depending on the time and specific circumstances under which the property is held.

Articles 1049–1052 of the new Civil Procedure Code, effective from February 15, 2013, prescribe a new, special court procedure for adverse possession.

According to these provisions, if all the necessary conditions for adverse possession are met, a court procedure must be initiated to establish ownership rights, meaning a lawsuit must be filed at the court with jurisdiction over the location of the property.

The documents to be attached to the claim are as follows:

  • death certificate of the registered owner in the land registry,

  • the notarial deed transferring the estate of the registered owner, along with the names of heirs,

  • a document issued by the municipality certifying that the property is not public land,

  • tax certificate,

  • expert opinion (Since the applicant does not yet possess ownership of the property, the requirement to attach cadastral documentation mandated by law may be debatable.),

  • land registry extract, and

  • the names and addresses of at least two witnesses.

After the claim is filed, the court summons the registered owner or their heirs and orders the posting of a notice regarding the lawsuit on the property in question, at the court’s premises, at the land registry office, and at the municipal office. Additionally, it mandates the publication of the notice in two widely circulated newspapers.

The claimant is responsible for bearing all costs of these procedures.

If, within 6 months from the last notice, no opposition is raised by the parties concerned or the registered owner is deceased or has relinquished ownership, then the court, after hearing the claimant and the witnesses, issues a substantive ruling.

In case of opposition, the claimant has the option to file a reply, after which the court issues a decision regarding the acquisition of ownership.

An appeal may be filed against the first-instance court ruling. The ownership thus acquired can only be registered in the property registry, temporarily or permanently, based on the court’s judgment.

Since, for many of us, our real estate represents the most significant value among our assets, we should remember that this also means that failing to exercise ownership rights over an extended period opens up the possibility for a person who possesses the property peacefully and without interruption to acquire ownership rights to it.