Notarial certificate is no longer enough for adverse possession

Adverse possession of property based on notarial certificate and without the condition of publicity (disclosure). This was a frequent practice concerning mainly older or long-unused property, which, however, brought a number of disputable moments. Notarial certificates were often misused, and the persons concerned could only protect themselves by a lengthy process. Since May, the process of adverse possession has changed significantly and brought much more transparency.

A new method of adverse possession of property

The amendment to the Civil Non-Dispute Order has brought a change in the method of confirming the adverse possession of property. From 1 May 2021, the notarial certificate is no longer enough for the acquisition of ownership by adverse possession. Confirmation of the adverse possession has been moved from the competence of notaries to the competence of courts, which shall confirm or reject the transfer of ownership under the law established process. This change aims to reduce the number of fraudulent transfers of land, the owners of which have no knowledge of adverse possession of their land at all.

Let's look at a few basic principles of the new proceedings on the confirmation of adverse possession.

The new process of adverse possession

Confirmation of ownership or easement on property in court proceedings begins by the submission of a proposal for initiation of proceedings on the confirmation of adverse possession at the local competent court. The local jurisdiction of the court is determined by the district, in which the property is located. The proposal for the initiation of this proceedings is charged with a court fee of 99,50 EUR. 

The court without the presence of participants and without ordering a hearing firstly assesses the proposal on the basis of the facts provided in it and on the basis of evidence provided by the applicant to demonstrate compliance with the conditions of adverse possession. The aim of this procedure of the court is to eliminate from the proceedings all unjustified and unfounded proposals, where it is clear that the compliance with the conditions of adverse possession has not occurred and not to burden the other participants to the proceedings.

If the court considers all the conditions to be met, it continues with the proceedings by issuing an inviting resolution to be published in the Commercial Journal, on the municipal official board, or by other means of notification and to be delivered to other participants in the proceedings. In the inviting resolution, the court invites all participants in the proceedings and other persons, whose rights could be concerned by adverse possession to submit any objections to the issuance of a resolution on confirmation of adverse possession within 6 months of its disclosure.

Participants in the proceedings

The participant in the proceedings is the applicant, that is, a person who claims that they have acquired ownership or easement on property by adverse possession, in other words, have met all substantive conditions of adverse possession and at the same time they prove such compliance.

Another participant in the proceedings is a person whose ownership right or easement on property is entered on a title deed in the property cadastre, the forest land manager and the Slovak Land Fund. The inviting resolution shall be delivered to their own hands.

A person who submits objections against the inviting resolution after its publication is also a participant in the proceedings.

Objections to the inviting resolution

The court will examine all the timely submitted objections and if they are justified it will reject the proposal for confirmation of adverse possession or easement by a resolution. Otherwise, the court will issue a resolution on the confirmation of the acquisition of ownership right or easement on property by adverse possession. Such a decision is binding, and the applicant may apply for the registration of their ownership right to the real estate cadastre on its basis.

Protection of ownership right by a claim

A valid resolution on confirmation of adverse possession or easement is not an obstacle for the persons concerned to demand protection of their right. The persons concerned may demand the protection of their ownership right by a claim. However, the condition is that they have to prove in dispute proceedings that the facts and objections, which demonstrate that the right to property of the concerned person was infringed by adverse possession, could not be applied by submitting objections within the proceeding on confirmation of adverse possession. In other words, if the person concerned did not effectively object the adverse possession within the proceeding on confirmation of adverse possession, they will not probably be successful in court.

Finally, the amendment of the act explicitly states that a person who has acquired an ownership right to property in good faith from a person to whom adverse possession has been validly confirmed is protected as if they had acquired it from the owner. In the event that the condition of good faith is not met, such acquirer is obliged to hand over the property to the rightful owner and has the right to demand from the adverse possessor any compensation for damage, if the damage occurred.

Conclusion

Although the process of adverse procession has changed since May, it has brought several benefits. Thanks to the condition of publicity, the whole process of adverse possession of property is much more transparent. The protection of the right of ownership is also ensured, namely the rights of the rightful holder requesting confirmation of adverse possession, as well as the original owners of the property. This will achieve a higher degree of legal certainty, which the previous legislation did not provide.