According to Art. 79 of the Civil Code, the recognition of the right of ownership over a property acquired by prescription is subject to full and direct proof of the exercise of actual power for a period of more than ten years, demonstrating the conduct of a full owner, if the possession is in bad faith, or five years, if the possession is in good faith. The acquired prescription according to Art. 79 of the Civil Code is a complex legal fact, which includes a) the actions of the initial establishment of possession, i.e. the actual domination over the property with the intention of owning it, b) the continued existence of the actual possession thus established and the actions, through which the permanent exercise of possession is carried out, corresponding to ownership. In addition, the factual composition of the acquisitive prescription covers in) the expiration of the period of time specified by law during which the exercise of actual control over the property continued /Decision No. 197 of 28.06.2010 of the Supreme Court of Cassation on case No. 875/2009, I. O., GC; Decision No. 4 of 2.02.2009 of the Supreme Court of Cassation on case No. 4383/2007, I. O., GC/. Case law also establishes an additional criterion when d) it is necessary to prove the conversion of possession into possession, if any /TR No. 1 of 6.08.2012 of the Supreme Court of Cassation on the interpretation of case No. 1/2012, OSGK/, which can be done by demonstrating the change of intention to one's own in an unequivocal manner, towards all /Decision No. 214 of 28.10.2015 on case No. 1919/2015, 1st division of the Supreme Court of Cassation; Decision No. 17 of 01.03.2017 on case No. 2923/2016, GC, 2nd division of the Supreme Court of Cassation/.
Agreed item 2 of the Supreme Court of Cassation's ruling No. 4 of 17.12.2012 on the interpretation of case No. 4/2012, OSGK, the reference to the statute of limitations is not an element of the factual composition of the acquisitive ground under Art. 79 of the Law on Property, but a procedural means of protection of the substantive consequences of the statute of limitations, taken into account at the time of expiration of the statutory period. In the presence of a reference, the legal consequences – acquisition of the real right – shall be considered from the moment of expiry of the legally determined period, in accordance with the elements of the factual composition of the acquisition basis under Art. 79, para. 1 of the Civil Code and under Art. 79, para. 2 of the Civil Code.
Good faith and bad faith possession
The law determines the conscientious owner as a person who possesses the thing on a legal basis, capable of making it the owner, without knowing that the grantor is not the owner or that the form prescribed by law has been defective (Art. 70, para. 1, first sentence of the Civil Code). The legal basis for bona fide possession under Art. 70, para. 1 of the Civil Code may be all transferable (translative) bilateral or unilateral transactions, such as sale, exchange, donation, bequest, as well as administrative acts with real law consequences. The legal basis is also the court decision on a constitutive claim, by which the right of ownership or a limited real right is transferred /item III of Decree No. 6 of 27.XII.1974 under city ordinance No. 9/74, Plenum of the Supreme Court/. The most common hypothesis of bona fide possession is the sale of real estate by a non-owner, when the buyer in this transaction did not know that the transferor was not the owner of the property /Decision No. 172 of 26.06.2013 of the Supreme Court of Cassation in case No. 929/2012, I district, Civil Code/. The decision of the OSFG under Art. 14, para. 1 ZVSGZGF is also a valid basis within the meaning of Art. 77 ZS for acquiring ownership of the restored land or forest from the forest fund. In cases where this decision has restored land/forest in favor of a person who does not have the status of a right holder within the meaning of Art. 3 ZVSGZGF, the fruits of the property may be retained by him if he is a bona fide owner within the meaning of Art. 70, para. 1 ZS /not knowing that he has been restored to property that was not the property of his testator/ /Decision No. 239 of 28.01.2013 of the Supreme Court of Cassation in case No. 1407/2011, III district, Civil Code/. The possessor will also be in good faith when he has established his possession on the basis of a decree of assignment which has subsequently been revoked /Decision No. 365 of 22.10.2012 of the Supreme Court of Cassation in case No. 17/2012, I district, Civil Code/. The conscientious owner, however, may become unconscionable under certain circumstances, such as the entry of a foreclosure as collateral and, accordingly, the filing of a claim by the actual owner for the return of the property /Decision No. 292 of 5.11.2013 of the Supreme Court of Appeals under City Decree No. 1291/2012, IV year o., GK/.
Case law abounds with examples of bad faith possession. For example, possession based on a void contract is in bad faith /Decision No. 492 of 28.05.2009 of the Supreme Court of Appeals under City Decree No. 1376/2008, IV year o., GK/, as well as possession based on a void administrative act /Decision No. 239 of 28.01.2013 of the Supreme Court of Cassation in case No. 1407/2011, III district, Civil Code/. A yard regulation plan, adopted in accordance with the procedure of the ZUT and not implemented within the terms under § 6, para. 2 and 4 of the PR of the ZUT, due to which its alienating effect has ceased, is not a basis for bona fide possession /Decision No. 225 of 10.12.2013 of the Supreme Court of Cassation in case No. 2253/2013, I district, Civil Code/. The decision of the General Meeting of Partners in an LLC, which determines the share of the departing partner, as well as the separation protocol, are not grounds for establishing bona fide possession of the property - the subject of the separation protocol, if it is not in notarial form /Decision No. 359 of 25.10.2011 of the Supreme Court of Cassation in case No. 1220/2010, I district, Civil Code/. Case law assumes that possession based on a preliminary contract is in bad faith / Decision No. 1343 of 28.11.2008 of the Supreme Court of Cassation in case No. 4391/2007, IVth district, Decision No. 270 of 26.06.2012 of the Supreme Court of Cassation in case No. 1056/2011, Ist district, GC, Decision No. 1 of 11.05.2020 of the Supreme Court of Cassation in case No. 289/2019, Ist district, GC/, emphasizing that the nullity of the title does not affect the establishment of bad faith possession /Decision No. 923 of 4.X.1995 on city case No. 669/95, II year of origin; Decision No. 67 of 3.12.2020 of the Supreme Court of Cassation on city case No. 3693/2019, II year of origin, Civil Code, item 10 of the Civil Procedure Code No. 6 of 1974./.
Establishing possession
Possession can be established by transmission, or through actual possession of the thing by repelling the previous possession. Possession, as an element of the factual composition of the acquisitive prescription, must be continuously, calmly /not established and maintained by violence/, obviously /not established and maintained in a covert manner/ and undoubtedly /to establish that actual power is actually being exercised with the intention of abusing it/ /Decision No. 68 of 2.08.2013 of the Supreme Court of Cassation on case No. 603/2012, I. year, GC; Decision No. 262 of 9.10.2012 of the Supreme Court of Cassation on case No. 439/2012, II. year, GC/.
When possession of real estate is established through transfer from the previous owner or possessor and there is no evidence that the actual power has been taken away, the presumption of Art. 69 and Art. 68 of the Civil Code applies and it is assumed that the property is held for oneself /Decision No. 32 of 8.02.2016 of the Supreme Court of Cassation in case No. 4591/2015, I district, Civil Code and Decision No. 3/25.01.2016 on case No. 3973/2015 of the First Judicial District of the Supreme Court of Cassation/.
If the testator during his lifetime has expressed a will to transfer the possession to his relative, who after his death has the status of his heir by law, it is assumed that from the moment of transfer of the possession an independent factual authority with the intention of acquiring the property has been established. And if by the death of the person who transferred the possession the period provided for in Art. 79, para. 1 of the Law on Property, has not expired, the fact of inheritance does not change the fact that at a previous moment one of the co-heirs established independent factual authority over the property during the lifetime of the testator.
The transfer of possession is not a formal act /quasi-transfer – transfer of possession as a factual state/ – it can be made explicitly through a verbal statement or by conclusive actions, therefore its establishment through witness testimony is permissible /Decision No. 32 of 8.02.2016 of the Supreme Court of Cassation in case No. 4591/2015, I district, Civil Code/. When there is such a prior agreement with the testator, and at the same time the possession is transferred, It is not necessary during the testator's lifetime for this will to be brought to the knowledge of other persons who could have the status of "heirs at law" after his death. – in this sense they are Decision No. 32 of 08.02.2016 of the Supreme Court of Justice in case No. 4591/2015, 1st year, GC, Decision No. 3 of 25.02.2016 of the Supreme Court in city case No. 3973/2015, 1st year, GC, Decision No. 60 of 07.06.2018 of Supreme Court of Justice in city case No. 2420/2017, I year o., GK, Decision No. 20 of 23.07.2018 of VKS in city case No. 1377/2017, II year o., GK. If the term provided for in Art. 79, para. 1 of the Civil Code has not expired by the death of the testator, the fact of inheritance does not change the circumstance that at a previous moment one of the co-heirs established independent factual authority over the property during the lifetime of the testator with his consent, therefore, this heir is not required to demonstrate to the other heirs a subsequent change in the intention with which he exercises actual power after the opening of the inheritance. In this sense, they are Decision No. 2 of 12.03.2020 of the Supreme Court of Cassation on case No. 619/2019, I division, GC, Decision No. 32 of 08.02.2016 on case No. 4591/2015 of the Supreme Court of Cassation, I division, Decision No. 73 of 03.08.2018 on case No. 2244/2017 of the Supreme Court of Cassation, I division, Decision No. 60 of 07.06.2018 on case No. 2420/2017 of the Supreme Court of Cassation, I division. etc. It should be noted, however, that if the possession of a property is transferred by a testator during his lifetime, his heirs do not acquire as part of the inheritance actual power over the property and possession as a factual relationship /Decision No. 60077 of 14.06.2021 of the Supreme Court of Cassation in case No. 3677/2020, I district, Civil Code/.
According to the explanations given in TR No. 1/06.08.2012 of the Supreme Court of Cassation and Justice on interpretation No. 1/2012., in cases where one of the co-owners has begun to exercise actual power over the property on a basis that excludes the possession of the others, his intention to own it is presumed and it is sufficient to prove that he has exercised actual power over the entire property within the period under Art. 79 of the Civil Code. Of essential importance when invoking acquisitive prescription in relations between co-heirs is therefore the basis on which one of them has begun to exercise actual power over the co-owned property. If possession has been transferred to him by one of the co-owners, it should be assumed that there is an intention to exercise actual power for himself, which excludes the possession of the others in relation to the part of this co-owner. If during one's lifetime one person has transferred possession of real estate to another, it should be assumed that the latter establishes independent factual authority over the entire property with the intention of acquiring ownership from that moment on. And if by the death of the person who transferred the possession, the period provided for in Art. 79, para. 1 of the Civil Code has not expired, the fact of inheritance does not change the fact that at a previous moment one of the co-heirs established independent factual authority over the property during the testator's lifetime.
In the cases of repelling possession and establishing a new one, it is necessary that the intention to own the thing reaches the previous owner, and not remain hidden. According to Decision No. 291 of 9.08.2010 of the Supreme Court of Cassation in case No. 859/2009, II district, Civil Code, to change possession to possession, the holder must demonstrates a change in intention /interference with possession/ for ownership of the property, which openly demonstrate to the owner; in the same sense it is Decision No. 270 of 20.05.2010 of the Supreme Court of Cassation in case No. 1162/2009, II district, Civil Code, in which it is accepted that once the actual power over the property has been established as possession, however long it may last and whatever the subjective attitude of the holder, this actual power cannot lead to the acquisition of ownership by prescription and only if the holder changes his intention and transforms the possession into possession, does the acquisitive prescription begin to run in his favor, but in order to be considered as having taken possession, it is necessary that the change in the intention to exercise actual power exclusively for oneself instead of another should find external manifestation through actions that unequivocally deny the rights of the previous owner or possessor, which follows from the requirement that possession is not established in a hidden manner; according to Decision No. 145 of 14.06.2011 of the Supreme Court of Cassation in case No. 627/2010, I district, Civil Code, the general principle of justice excludes the concealment of the statute of limitations, because rights cannot be derived from conduct at a time when the affected owner has no opportunity /due to ignorance/ to defend himself; according to Decision No. 12 of 19.02.2014 of the Supreme Court of Cassation in case No. 1840/2013, I district, Civil Code, in a hypothesis where the actual power over real estate is acquired on a legal basis /concluded loan agreement for servicing under Art. 243 of the LPA/ and there is no notification to the owner of a change in the holder's intention and its transformation into bad faith possession, the presumption under Art. 69 of the LPA does not apply.
For the sake of completeness, it should be noted that someone who is already the owner of a property cannot acquire it by prescription, unless the rights of the grantor under the acquisition transaction are challenged, since it is not possible to have competing grounds for ownership, nor can a person reject his possession /Ruling No. 14 of 12.01.2016 of the Supreme Court of Cassation in case No. 5952/2015, III district, Civil Code, Decision No. 182 of 31.07.2017 of the Supreme Administrative Court in case No. 96/2017./.
Maintenance of possession and period of possession
Possession within the meaning of Art. 79 of the Civil Code, according to the established practice of the Supreme Court of Cassation, does not necessarily have to be expressed in the continuous exercise of actual influence over the property /processing, refining, etc./. De facto authority can also be exercised through periodic visits, as long as they indicate an intention to consider the property as one's own and are not interrupted by actions of third parties. /Decision No. 17 of 19.02.2016 on case No. 4335/2015 of the 2nd Judicial District Court of the Supreme Court of Cassation/. Once a person has once established actual power over real estate, it is presumed, until proven otherwise, that he exercises this actual power permanently and continuously, until the moment when it is established that a third party has committed such an act, which clearly and categorically prevents the holder from exercising actual power over the property in the future /Decision No. 16 of 7.02.2020 of the Supreme Court of Cassation in case No. 1246/2019, I district, Civil Code, Decision No. 330/28.11.2011 on case No. 1519/2010 of the 2nd Judicial District Court of the Supreme Court of Cassation/. Even after the establishment of actual power, it is not necessary for a property to be used permanently, since, for there to be permanent possession, it is sufficient for the possessor to be able, at any time he wishes, to exercise his power of possession, in accordance with the purpose of the thing, without another person having begun to perform these actions and having deprived the possessor of his possession, and it is of no legal importance whether the possessor has actually taken advantage of his power of possession, as well as to what extent /Decision No. 103 of 9.10.2019 of the Supreme Court of Cassation in case No. 307/2019, II district, Civil Code, Decision on case number 503/2.05.2012 on case number 873/2011, 1st division of the Supreme Court of Cassation/. For the sake of completeness, it should be noted that the payment of taxes for property without actual established de facto authority does not constitute an inference of possession with intent to own, and does not constitute a demonstration of possession /Decision No. 136 of 11.05.2009 of the Supreme Court of Appeals pursuant to Administrative Order No. 280/2008, IV year o., GK/.
According to Art. 83 of the Law on the Protection of Children whoever proves that he ruled at different times is presumed to have ruled in the interval, unless the contrary is proven. Once established, actual power over immovable property is presumed to continue to be exercised by the possessor continuously until it is proven beyond doubt that the possession has been interrupted, and hence the interruption of the acquisitive prescription that has begun to run in favor of the possessor. The limitation period may be considered interrupted only if a third party has performed an action that has prevented the possessor from exercising the actual power over the property established by him in the future, and these actions must have led to the removal of the possessor from the property for more than 6 months.. In this sense, the provision of Art. 81 of the Civil Code explicitly provides that the limitation period is interrupted by the loss of possession for more than six months. Once a person has once established actual power over a property, it is presumed, until proven otherwise, that he exercises this actual power permanently and continuously until the moment when it is not established that a third party has performed such an action that clearly and categorically prevents the holder from exercising actual power over the property in the future or that such an action is performed that has the consequence of removing the holder from the property /Decision No. 330 of 28.11.2011 of the Supreme Court of Cassation in case No. 1519/2010, II district, Civil Code/.
Joining a domain
According to Art. 82 of the Law of Land, the possessor may annex to his possession the possession of his grantor.The accession of the possession is permissible only if there is a legal succession between the two owners.: general succession /upon inheritance/ or private succession /when the second owner receives possession of a certain property from the previous owner on a legal basis that is suitable for transferring ownership of the property/.
When joining uniform possession /for example, when both the grantor and the assignee are bona fide possessors or when both the grantor and the assignee are bad faith possessors/, the period required for acquiring the property by prescription is that provided for in Art. 79 of the Property Act for the respective type of possession: a total of 10 years bad faith possession of the grantor and the assignee or a total of 5 years good faith possession of the grantor and the assignee.
At heterogeneous possession /the grantor's possession is in bad faith, and the successor's is in good faith or vice versa/, the aggregation of the periods of possession of the grantor and the successor can only be done by disregarding bona fide possession as such. That is, when joining heterogeneous possession, the required period for acquisition by prescription of real estate is the period provided for acquisition by prescription in case of bad faith possession – 10 years. /Decision No. 33 of 20.03.2020 of the Supreme Court of Cassation in case No. 1962/2019, I. O., GC, Decision No. 178 of 9.07.2014 of the Supreme Court of Cassation in case No. 7749/2013, I. O., GC/.
Period of limitation for acquisition of private, state and municipal property
For private state and municipal property, it was possible to acquire them by prescription, after the prohibition on this in Art. 86 of the Civil Code, as amended by SG No. 33/1996, in force from 01.06.1996, was repealed, leaving only the prohibition on acquiring public state or municipal property.
The statute of limitations for private state-owned properties was suspended by the norm of §1 of the PZR of the ZS, SG, issue 46 of 2006, in force from 1.06.2006, but on the last day before the expiration of the ten-year period, i.e. as of 01.06.2006. Initially, the statute of limitations was suspended for a period of 7 months, and subsequently this period with new amendments was extended to 31 December 2007, 31 December 2008, 31 December 2011, 31 December 2014, 31 December 2017, and finally to 31 December 2022.
With Decision No. 3 of 24.02.2022 of the Constitutional Court under case number 16/2021. The provisions of § 1, para. 1 of the Law on Supplementing the Civil Code, promulgated, SG, issue 46/2006, last supplemented, SG, issue 18/2020, and of § 2 of the Final Provisions of the Civil Code, SG, issue 7/2018, which granted retroactive effect to the extension of the term, have been declared unconstitutional. As a consequence of the declaration of unconstitutionality of the norm of § 2 of the Final Provisions of the Civil Code, SG, issue 7/2018, which granted retroactive effect to the extension of the term, it is accepted by the Constitutional Court that The statute of limitations ran from December 31, 2017 to January 19, 2018.because the retroactive effect of the substantive law cannot affect already acquired rights /Decision No. 50080 of 26.10.2022 of the Supreme Court of Cassation on case No. 1814/2021, II year of the Civil Code, Decision No. 50141 of 25.04.2023 of the Supreme Court of Cassation on case No. 3194/2021, I year of the Civil Code/. The decision of the Constitutional Court was published on 04.03.2022 in issue 18 of the State Gazette, while the limitation period continues to run from 08.03.2022. As a consequence of this, for the period 31.05.2006 - 30.12.2017 and 20.01.2018 - 07.03.2022, the acquisition limitation period for private state-owned properties has stopped running by virtue of the moratorium established by the legislator. Such a period begins to run with the entry into force of the decision of the Constitutional Court on 8.03.2022.
In short, according to Decision No. 3 of 24.02.2022 of the Constitutional Court under case number 16/2021. for the period until 01.06.2006, and from 31.12.2017 to 19.01.2018, the statute of limitations has run, as well as since 08.03.2022, for private state or municipal properties.
Interruption of the statute of limitations
According to Art. 81 of the Civil Code, the limitation period is interrupted with loss of possession for more than six months. In addition, The rules of Articles 113, 115, 116, 117 and 120 of the Obligations and Contracts Act shall apply to the statute of limitations., according to Art. 84 of the Civil Procedure Code. According to Art. 116 of the Civil Procedure Code, the limitation period is interrupted: a) with recognition of the claim by the debtor; b) by filing a claim or objection or a request to initiate conciliation proceedings; if the claim or objection or the request to initiate conciliation proceedings are not upheld, the limitation period shall not be considered interrupted; in) with taking enforcement actions. In case law and doctrine, there is no dispute as to what the law means by recognition of the claim, or filing a claim with the consequences of interrupting the statute of limitations.
Interruption of the statute of limitations through filing a claim to establish ownership or reclaim the property should always be associated with actions by the holder of the disputed substantive right, directed against the person who could invoke the statute of limitations for repayment or acquisition /Decision No. 116 of 24.11.2014 on civil case No. 2592/2014 of the 2nd Chamber of the Supreme Court of Cassation/, since the consequences of the statute of limitations are related to the inaction of the right holder /Decision No. 99/10.05.2013 on case No. 681/2012 of the 1st division of the Supreme Court of Cassation/. The individual owner may be deprived of possession, or his possession may be interrupted by filing a claim for ownership, without affecting the possession of the other co-owners. For each of the co-owners, possession produces a completely independent effect /Decision No. 42 of 28.06.2022 of the Supreme Court of Cassation in case No. 3053/2021, II district, Civil Code/.
The confession can be done judicially or extrajudicially, as well as by conclusive actions. The issued title deed in the name of a given person does not in itself lead to either the termination of the actual power of the possessor over the thing, nor does it exclude his intention to possess for himself. According to the argument of Art. 116, b. "a" of the Land Registry Act, the recognition of the possessor, and not of the owner of the thing, is decisive for the interruption of the acquisitive prescription. Providing the owner with a notarial deed is not a means of protecting his right to ownership. The notarial deed alone cannot repel the possession that another person exercises over the thing, even when it has been brought to his attention. /Decision No. 212 of 13.09.2011 of the Supreme Court of Cassation in case No. 70/2010, I district, Civil Code/.
The statute of limitations cannot be considered interrupted by the filing of a complaint with the prosecutor's office by the owner of the property for the return of the property to its owners /Decision No. 115 of 07.11.2018 on case No. 3954/2017 of the 1st Division of the Supreme Court of Cassation/, with various invitations - oral, written, notarial, with factual disturbances of possession, carried out by the owner, which have not resulted in the deprivation of possession for more than 6 months /Decision No. 130 of 18.11.2019 on case No. 1017/2019 of the 2nd Chamber of the Supreme Court of Cassation/, the filing of extrajudicial claims of any kind, including when they have led to a quarrel /Decision No. 83 of 09.10.2020 on case No. 3878/2019 of the 1st division of the Supreme Court of Cassation/, factual disturbances of possession carried out by the owner, which have not resulted in the deprivation of possession for more than six months, do not lead to an interruption of the acquisitive prescription /Decision No. 83 of 9.10.2020 of the Supreme Court of Cassation in case No. 3878/2019, I district, Civil Code/.
Of interest is the interruption of the statute of limitations under Art. 116, b. "c" of the Contractual Liability Act, namely by taking enforcement action. Case law has clarified that The imposition of a foreclosure on real estate does not prevent a third party from exercising possession over it.because the statute of limitations is an original method of acquiring the right of ownership and the rules for the enforceability of transactions after the foreclosure do not apply /Decision No. 374 of 2.10.2020 of the Supreme Court of Cassation in case No. 1666/2020, Ist year of the Civil Code, Decision No. 292 of 5.11.2013 of the Supreme Court of Cassation in case No. 1291/2012, IVth year of the Civil Code/. This means that taking enforcement actions such as imposing a foreclosure do not take away the possession of the third party, who may continue to own the thing and acquire it, but the imposition of a foreclosure has another effect, namely the interruption of the limitation period on the basis of Art. 116, b. "c" of the LZD and the commencement of a new statute of limitations for the non-owner in possession /in a similar sense it is Decision No. 392 of 10.01.2012 of the Supreme Court of Cassation in case No. 891/2010, I district, Civil Code/. This understanding should be emphasized, since the law does not clearly indicate what enforcement actions should be carried out, and the answer to this question is found in the Civil Procedure Code - these can be foreclosure, inventory, entry into possession. Next, the question remains open as to which person should take enforcement actions - the non-possessing owner or his creditors. I believe that taking actions in both cases should interrupt the acquisitive prescription, and not only the repayment period for the claim. To assume that only an owner can interrupt the acquisitive prescription with enforcement actions against his own property is not supported by the law, and such a condition is not contained in Art. 116 of the Civil Procedure Code. Taking enforcement actions can also occur in the case of universal enforcement, namely opening of bankruptcy proceedings and imposing a general seizure and injunction on the trader's property, and in this case it can also be assumed that the statute of limitations is interrupted on the basis of Art. 116, b. "c" of the ZZD /Decision No. 412 of 24.08.2016 of the General Assembly - Smolyan on case No. 140/2014/.
The imposition of a foreclosure can be carried out both by the non-possessing owner and by third parties directing their enforcement to the non-possessing owner. The quoted Decision No. 392 of 10.01.2012 of the Supreme Court of Cassation in case No. 891/2010, I district, Civil Code also accepts that the statute of limitations does not run while the performance lasts, pursuant to Art. 115, b. "g" of the Civil Procedure Act, pursuant to Resolution No. 3 of 18.XI.1980 under City Decree No. 3/80, Plenum of the Supreme CourtThis means that until the repeal of Resolution No. 3 of 18.XI.1980 under City Decree No. 3/80, Plenum of the Supreme Court with TR No. 2 of 26.06.2015 of the Supreme Court of Cassation on item No. 2/2013, OSGTK, according to TR No. 3 of 28.03.2023 of the Supreme Court of Cassation on item No. 3/2020, OSGTK for properties on which there was a directed enforcement, no acquisitive prescription could run in favor of third parties until 26.06.2015, since the prescription was suspended, and all unscrupulous owners of such properties will be able to acquire them on 27.06.2025, if the prescription was not interrupted after 26.06.2015.
Mortgage of real estate represents a demonstration of the owner's authority, but does not constitute either a deprivation of possession or an interruption of the statute of limitations, insofar as Art. 116 of the Labor Code is imperative and cannot be interpreted broadly /TR No. 3 of 22.04.2019 of the Supreme Court of Cassation on item No. 3/2016, OSGTK/. Hypothecation is essentially a legal, not a factual, action that may not in any way affect the possession of a property, and in some cases even the establishment of the mortgage is entirely documentary, without any physical presence on the part of the mortgagee or debtor. In other cases, the hypothecation of a property may involve actions that disturb the possession, but they must be of such a nature as to deprive the third party of possession, and not merely to disturb him. However, the mortgage will continue to operate on the property, even if it is acquired by a third party by prescription, if the same was registered before the acquisition by the third party, as enforcement on the property will be possible after that moment /Decision No. 204 of 19.10.2017 of the Supreme Court of Appeals under City Decree No. 4806/2016, IV year o., GK/.
Ivan Nikolaev, attorney-at-law
