The New Civil Code proposes fundamental changes concerning some civil law institutions, particularly in matters of real estate. In this article I will offer a comparative analysis of an important institution for the private law - the usucaption, otherwise known as acquisitive prescription.
The Civil Code of 1864 grouped the acquisitive prescription and the extinctive prescription under the same category. This confusion made by the legislator in the Civil Code was noticed by the doctrine, which pointed out that the acquisitive prescription has as a result obtaining property or another real estate, whereas the extinctive prescription has as a result the extinction of a personal property or an action. (Hamangiu, Rosetti, Băicoianu, 1997).
The usucaption of real estate was, maybe, the most important result of uninterrupted and undisputed possession. This powerful effect was attributed for multiple reasons. Firstly, even if possession is a matter of fact, in many cases it matches a matter of right, which is the right to property. In this way, the acquisitive prescription simplifies the situation of the owner who does not have to go through the so-called ‘probatio diabolica’ of his or her real property, being enough to prove the possession during a certain period of time established by law, to be considered the owner of that right. Secondly, the acquisitive effect fulfils the necessity of protecting and maintaining the legal order, the result of a long time possession. So, the usucaption is nothing else but the transformation of a long time appearance into a certain and indisputable legal relation. Thirdly, the usucaption is considered a sanction for the last owner who, passive and neglectful, left the real assets in possession of a third person who acted publicly as a holder of a real property.
The New Civil Code, in contrast with the Civil Code of 1864, does not regulate the usucaption as a concrete way of obtaining property as a result of the exclusive possession, but rather as a title based on which it is possible to claim the registration of the property rights in The Land Register. The most important aspect is that, this time, the effect is strongly connected to real estate publicity acquired through The Land Register. (David, 2012) The New Code is inspired by the German civil law under which real estate rights are obtained through the registration in a real estate register, if such a register is opened. The property interests include the property right and the dismembered rights of property right: superficies, usufruct, use, occupancy, servitude.
Both codes settled the inalienability of res communes (meaning common goods) such as the natural light, the air, the sea, or the public assets. The same concordance between the two codes exists with regards to the necessity of a utile possession in order to benefit from the acquisitive prescription. A vicious possession interrupts the flow of prescription. Such vices are the discontinuity, the clandestinity, the violence and the doubt. On this point, we must mention that the possession exercised by custodians, such as a lodger or a trustee, is not a useful possession as they do not act like owners.
However, a fundamental difference between the two laws is the term of the acquisitive prescription. The Civil Code of 1864 tackled two institutions, called the long usucaption and the short usucaption. Two conditions were necessary for the long usucaption: having a useful possession and exercising it uninterruptedly for thirty years. For the short usucaption the conditions were the possession based on a legitimate cause, the good faith of the possessor and a possession from ten to twenty years. The legitimate cause had to be real, not putative, and the good faith must have existed when becoming a possessor. Regarding the usucaptions regulated by the New Civil Code, these are the restatements of Articles 27 and 28 from Law - decree 115/1938, as follows:
Firstly, following an uninterrupted possession of at least 10 years, the possessor is considered the rightful owner of the good, having the possibility of registering this right in the Land Register. In this regard, the mechanism is similar to the one regulated by the previous code; however, this type of usucaption only operates in three cases: a) if the owner registered in The Land Register has passed away; b) if a declaration of renunciation to property has been registered in The Land Register; c) the right was not registered in a real estate register.
Secondly, there is another, distinct type of usucaption, which is actually not a means of obtaining property; it is rather a mechanism by which the rights already registered in The Land Register are consolidated after a certain period of time haslapsed, precisely after five years. The person who invokes the acquisitive prescription must be of good faith at the moment when he or she registered his or her right in The Land Register and have a useful possession, not a vicious one. The result of this type of usucaption is similar to the extinctive prescription as it cancels the right to an erasing action of that registration (David, 2012).
Lastly, we must say that the provisions of the New Civil Code as regards the acquisitive prescription are applicable for those possessions which started after the entering into force of the new code.
In conclusion, these are the main changes brought by the New Civil Code in comparison with the previous provisions. The acquisitive prescription, from being an original means of acquiring property, as a result of a long possession, becomes under the new law a title, which by meeting several conditions, allows the registration of the real interest of its owner.