Acquisition of Ownership Rights by Usucaption

ACQUISITION OF OWNERSHIP RIGHTS BY USUCAPTION

The acquisition of ownership by usucaption is regulated by the provisions of the Act on Ownership and Other Real Rights (official gazette of the Republic of Croatia ˝Narodne novine˝, Nos. 91/96,73/00, 114/01, 79/06, 141/06, 146/08, 38/09, 153/09, 143/12, 152/14, 81/15) according to which the acquisition of ownership by usucaption is possible by the independent possession of a certain thing, if the possession of such a thing has a legally determined quality, if it lasts continuously for a legally determined period of time, and if the possessor is capable of being the owner of that thing.

Right of ownership

The right of ownership is a real right on a particular property which authorises its holder to dispose of the thing and the benefits it entails as they see fit, and to exclude everyone else from such disposition, if that is not contrary to other people's rights or legal restrictions. The right of ownership means the right to own, use and dispose with one's thing.

Acquisition of ownership by usucaption – Subject to ownership rights

Any movable or immovable thing may be the subject to ownership rights and other real rights, save for those not having the required capacity.  It is important to note that things are the corporeal parts of nature, different from people and used by people. Anything that is extended equal status by law is also regarded as a thing.  Natural forces may be subject to property rights only if they are subject to human authority. The Act on Ownership and Other Real Rights stipulates that certain kinds of rights or anything else may be extended equal status as things by law; in such case, they are regarded as movable things. They are regarded as real property only if they are connected to the ownership of immovable things, or are a burden thereon, or if proclaimed to be real property by law.
The basic division of things is into corporeal and non-corporeal things and divisible and indivisible things. Corporeal things are movable things and real property, and non-corporeal are property rights, real rights to someone else's property and mandatory rights.
Real property are parcels of the earth's surface, together with everything that is permanently affixed to land on or below the earth's surface. Movable things are things that can be moved from one place to another without jeopardising their essence, i.e. their substance, and whenever there is doubt whether something is a movable thing or real property, it shall be considered a movable thing.
All things may be the object of property rights, except those by which their natural characteristics or legal provisions prevent them from belonging to the individual, and those parts of nature which by their characteristics may not be in the power of any person individually, but are instead used by all people e.g. atmospheric pressure, water in rivers, lakes and sea, seacoast. Such things are called common goods, and they are taken care of, managed by and fall within the scope of responsibility of the Republic of Croatia.

Acquisition of ownership rights

The right of ownership is acquired by fulfilling certain legal requirements, and if nothing else is prescribed by law, then all previous real rights to things save for those of which the acquirer knew or should have known cease.
The right of ownership can be acquired by legal transaction, by decision of the court and other competent authorities, by inheritance and by operation of law. The acquisition of ownership rights on the basis of a legal transaction is possible in such a way that the ownership from the former owner passes to the new owner by legal transaction, in the manner provided for by law. If the thing is a real property, such a legal transaction must be in writing, and it should be noted that no one may transfer more rights to another than they themselves hold. Ownership of a movable property is acquired by handing over the property to the acquirer, on the basis of a valid statement of will by the disposing party.
The right of ownership on the basis of a decision by the court or by some other competent authority is acquired at the time of the finality of the decision and thus all other existing real rights related to the thing which is the subject of the acquisition do not cease. It is important to know that an heir may acquire the right of ownership of inherited things at the time of opening the inheritance after the decedent’s death. The right of ownership is also acquired by fulfilling certain assumptions provided by the law, in which case all previous real rights in respect of things, such as the acquisition of ownership by usucaption, cease.

Acquisition of ownership by operation of law

Types of acquisition of property rights by operation of law are acquisition by taking as one's own and by finding, by accession, by usucaption, transformation of public property into private property pursuant to special regulations and the land registry trust principle.
The acquisition of ownership rights by taking as one's own and by finding is possible only for movable property which no one holds in their possession, and the right of ownership is acquired by taking things into independent possession with the intention of taking them as one’s own. It is not possible to acquire the right of ownership of things which may only be owned by the Republic of Croatia or by self-government units, and if a permit is required to acquire certain things, then the right of ownership of such things may not be acquired without such a permit.
In addition to things that originally do not belong to anyone, things abandoned by their owner are also regarded as no one's if the owner has thus waived their right of ownership.  No one's real property passes into the ownership of the Republic of Croatia on the basis of a statement on the waiver given in a form suitable for registration in the land register. In case of finding lost, misplaced or stolen items, they must be handed over to the nearest lost and found office, and the person who first noticed the matter and took it is considered to be the finder.
If valuables are found, e.g. money, valuables, etc., it should be handed over to the lost and found office, and it becomes the property of the Republic of Croatia, and the finder and the owner of the property on which the valuables were found are entitled to an appropriate reward by the Republic of Croatia.

Acquisition of ownership by usucaption

The acquisition of ownership by usucaption is possible by the independent possession of a certain thing, if the possession of such a thing has a legally determined quality, if it lasts continuously for a legally determined period of time, and if the possessor is capable of being the owner of that thing. In the event that the possessor is in a qualified possession of a thing i.e. if such possession is lawful, true, fair and lasts at least 3 years for movable property and 10 years for immovable property, and in the event that the possessor is in independent and fair possession of a thing for a period of 10 years for movable property and 20 years for immovable property, they may acquire the property by usucaption. For the acquisition of ownership by usucaption of things owned by the Republic of Croatia, self-governing units and other legal entities serving for charitable purposes, the above deadlines are doubled.

Can foreigners become owners in the Republic of Croatia?

A natural person is considered a foreigner if they do not hold the citizenship of the Republic of Croatia, and if such foreigners are not considered to be emigrants from the territory of the Republic of Croatia or their descendants who meet the prerequisite for acquiring citizenship of the Republic of Croatia. A legal entity is considered foreign if it has its registered office outside of the territory of the Republic of Croatia.
Foreign natural persons and legal entities may, under the assumption of reciprocity, acquire ownership of real property in the territory of the Republic of Croatia by inheritance. Other means of acquiring ownership, e.g. by usucaption, is possible only if the Minister of Justice gives consent in an administrative act, otherwise the legal transaction shall be considered void. A foreigner may not be the owner of real property located in an area which, for the purpose of protection of the interests and security of the Republic of Croatia, as been legally declared an area ineligible for ownership by foreigners.

Easement usucaption

Actual easement is established by usucaption pursuant to the law, if the possessor of the property under easement exercised their right of possession fairly for at least 20 years, and the owner of the property under easement did not object to it. It will not be possible to establish actual easement if such right was exercised by abuse of the trust of the owner or possessor of the property under easement, by force, secretly or at request until revocation.
If the easement by its nature may only rarely be exercised, the person claiming easement by usucaption must demonstrate that, over a period of at least 20 years, such easement was exercised at least three times, and that they or their ancestor have exercised such a right of easement in each of these occasions.
The right of actual easements over a certain property which was established pursuant to the law, but was not registered in the land register, may never, even if it is established by a court decision, contest the right of a person who, acting with confidence in the land register, registered their right on real property in good faith while this right of easement established pursuant to the law was not yet registered.

Protection of property rights

The owner of a thing is entitled to demand from the person in possession of their property to hand over the possession of this property to them and such right may not become obsolete. On the other hand, the person who disposed of the thing in their own name while the thing was not yet theirs, and later acquired the right of ownership over that thing, holds no such right.

Lawsuits for the protection of property rights are the real proprietary action, i.e. actio rei vindicatio, ownership action of the assumed owner, i.e. actio publiciana, an action for protection against harassment, i.e. actio negatoria, or an action for "non-interference". There is also a measure to protect the owner from violations by entry in the land register.

In order for the owner to successfully exercise their right to the protection of the right of ownership in proceedings before a court or other competent authority, i.e. in order to require the possessor to hand over their possession of a property, the owner must prove that the thing they claim to be their property, i.e. the legal basis of that right of ownership, and prove that the respondent is in possession of that property. In doing so, it is important for the owner to describe the thing according to its characteristics which distinguish it from other identical things.

A person who, in proceedings before a court or other competent authority, proves the legal basis and true manner of their acquisition of a particular thing, shall be regarded as the owner of that thing and may require the possessor, whose legal basis is weaker or non-existent, to hand over such a thing to them. Also, in the event that a third party unlawfully harasses the owner or the presumed owner in another way, and not by alienating things, the owner may then also demand before the court that such harassment stop. Furthermore, if a person violates the owner's right of ownership by invalid registration made in the land register, the owner is then entitled to protect themselves from such treatment by means of protection of registered ownership provided for in the rules of land registry, e.g. by a deletion action.

Termination of ownership rights

The right of ownership ceases with the destruction of the thing which was the subject of that right, and if the remains of that property subsist, then the right of ownership over them remains. The right of ownership also ceases when the thing becomes a part of another thing, i.e. when it loses its independence. Also, if the thing is placed out of circulation, the right of the former owner on it ceases, and so it is, for example, in the case of total expropriation. In case of derivative acquisition, the right of ownership will cease for the disposing party when the other person originally acquires ownership of said thing, and in case of waiver, for example, when the possession of a movable property is abandoned, or by written waiver for real property, the right of ownership will cease when the registration of deletion in the land register is made. Ownership may also cease by operation of law, but then the acquirers who acquired the property in good faith are protected.