In a system in which the ownership of immovable property is as a rule acquired by way of the land registry, extraordinary acquisitive prescription opens an exceptional door. In the case of properties that have never entered the register, or of properties which, although registered, have an owner who cannot be identified or who has long been absent from the legal order, ownership arises in favour of the possessor once the conditions required by law come together. The institution is a set of rules that attaches legal value to the maintenance of factual control over a long period and, in that respect, introduces a limited flexibility into the principle of registration.
In this briefing note we examine in detail the legal character of the institution, the conditions required, the nature of the possession, how the period is calculated, and the action to be brought in order to have the acquisition entered in the register.
What Is Extraordinary Acquisitive Prescription?
Extraordinary acquisitive prescription is an exceptional means of acquisition which, where certain conditions are satisfied, allows ownership to pass to the possessor in the case of properties never entered in the land registry, as well as properties which, although registered, have an owner who cannot be determined or which appear in the name of persons who have long been legally absent. At the foundation of the institution lies the attachment of a consequence in ownership, at the end of a specified period, to the maintenance of factual control over the property in the capacity of owner and over a long period.
The provision serves in particular in regions where the land registry was never created, was not kept regularly, or where the records and the factual situation have become detached from one another. The aim is to dispel uncertainty in relations of ownership and to place the legal position of the property on a secure footing.
The Basis of the Institution in the Turkish Civil Code
The statutory basis of the institution is Turkish Civil Code No. 4721, Art. 713:
Turkish Civil Code No. 4721, Art. 713(1)–(2)
“A person who holds in his possession, in the capacity of owner, without dispute and without interruption for a period of twenty years, an immovable property that is not registered in the land register may request that the registration in the land register of the right of ownership over the whole of that property, over a part of it or over a share in it be ordered.”
“Under the same conditions, the possessor of the whole, or of a part which may be divided off without objection, of an immovable property whose owner cannot be ascertained from the land register or which is registered in the name of a person in respect of whom a declaration of absence was made twenty years previously may likewise request that the registration in the land register of the right of ownership over the whole of that property, over a part of it or over a share in it be ordered.”
Under this provision, a person who has remained in possession, in the capacity of owner and without dispute or interruption, for twenty years of a property not entered in the register, or of a property which, although registered, has an owner who cannot be determined or which appears in the name of persons who died long ago or in respect of whom a declaration of absence has been made, may acquire ownership where the conditions required by law are present.
Points of Difference from Ordinary Prescription
The fundamental differences between the two institutions are gathered around the existence of a land registry entry, the period, and the criterion of good faith. Whereas ordinary acquisitive prescription requires a valid entry in the register and good faith on the part of the possessor, in extraordinary acquisitive prescription either there is no entry at all or the existing entry has lost its legal function; nor is the condition of good faith required.
The picture changes as regards the period as well: while ten years suffice for ordinary acquisitive prescription, extraordinary acquisitive prescription requires a wait of twenty years. With these features the institution stands out as a form of acquisition resting on long-sustained factual control and kept narrow in its field of application. For a comparative account of the subject, a separate study of the acquisition of the ownership of immovable property by ordinary acquisitive prescription would be appropriate.
The Conditions Required for Ownership to Be Acquired
Extraordinary acquisitive prescription is an exceptional means of acquisition attaching legal consequences to long-sustained factual control over immovable property. Reaching ownership by this route depends on all the conditions listed in the statute being satisfied together. These conditions serve to give validity to the existing factual situation and to dispel uncertainty in relations of ownership in cases where the register was never created or has remained legally without function.
In that framework, for an acquisition within the scope of Turkish Civil Code No. 4721, Art. 713 to arise, the following conditions must be examined carefully in relation to the particular case.
Absence of a Registration or Uncertainty as to the Owner
For the institution to apply, the property must either never have been entered in the land registry or, even if an entry exists, the identity of its owner must remain uncertain. That condition is the most distinctive element separating extraordinary acquisitive prescription from other means of acquisition. The properties falling within the scope of the institution may be listed as follows:
- Properties the subject of entries in which the owner column has not been completed
- Places of an unregistered character, never entered in the land registry in any form
- Properties in respect of which it cannot be determined to whom they belong
- Properties appearing in the name of persons in respect of whom a declaration of absence has been made
- Properties whose owner died long ago and whose heirs have not been identified
By contrast, this route is as a rule unavailable in relation to properties registered in the name of persons who appear plainly as owners in the register and whose legal existence continues.
Possession in the Capacity of Owner
At the core of the institution lies the possessor’s behaving as if he were the owner of the property. Possession in the capacity of owner denotes not merely the actual use of the property but also acting as an owner holding the power of disposition over it. Among the strongest indications of that capacity are the following:
- The property being sown and harvested for agricultural purposes
- A building being constructed on it, or an existing building being used
- The tax obligations relating to the property being discharged
- An economic benefit being derived from the property
- The property being defended against the interference of third parties
Uses founded on a lease, loan or service relationship, on the other hand, constitute possession on behalf of another and are not sufficient to show that this condition is satisfied.
Possession Continuing Without Interruption and Without Dispute
Possession must continue throughout the prescription period without interruption and without giving rise to dispute. That condition secures the continuity of factual control in law.
Absence of interruption means that control is maintained in fact. Where the possessor loses his control over the property, or a third person begins to use it as owner, the process is interrupted.
Absence of dispute, for its part, means that there is no serious and continuing objection or dispute directed at the possession. The bringing of an action asserting ownership over the property, or acts of factual interference, may cause that condition to fall away.
Completion of the Twenty-Year Period
The period required by law is twenty years. That period must run without any interruption, beginning from the moment possession was established with the intention of an owner.
Once twenty years have elapsed and the other conditions are also present, ownership is deemed to have been acquired by operation of law. Although no separate court decision is needed for the acquisition, in practice reflecting that position in the land registry makes the bringing of an action necessary.
Good Faith Is Not Required
Unlike ordinary acquisitive prescription, the condition of good faith is not required here. The possessor’s subjective belief as to the lawfulness of the factual control in his hands has no bearing on the outcome so far as this means of acquisition is concerned.
That choice reveals that the institution has been constructed on a footing that takes long-sustained possession and the factual situation as its basis. Bad faith on the part of the possessor does not, therefore, stand in the way of the acquisition of ownership so long as the other conditions are satisfied.
The Concept of Possession and Its Characteristics
Possession is one of the fundamental legal concepts, denoting the holding of a thing under actual control. It performs a decisive function in property law and particularly in relation to acquisitive prescription; it is among the first elements examined when it is considered whether ownership has been acquired.
So far as extraordinary acquisitive prescription is concerned, possession does not consist merely in factual use. It also involves behaving as owner over the property — that is, the intention to use it, to derive benefit from it and to dispose of it. Whether possession exists, and of what character it is, must therefore be assessed carefully within the particular circumstances of each case.
The Element of Acting as Owner
Possession in the capacity of owner denotes a person acting on the footing that he is the owner of the property and displaying conduct consistent with that intention. Such a possessor uses the property, derives economic benefit from it and protects it against the interference of third parties.
By way of example, the property being sown and harvested, a building being erected on it, its being let, or its being used without interruption over many years are among the strongest indications of that capacity.
By contrast, in cases of possession on behalf of another — for instance in the case of a tenant or the holder of a usufruct — the person uses the property but does not act with the intention of an owner. Possession of that kind is not regarded as sufficient for acquisitive prescription.
Distinguishing Principal Possession from Derivative Possession
Possession falls into two groups. A person who disposes of the property in his own name and acting as owner is a principal possessor. A person who holds the property on the account of another by virtue of an underlying legal relationship, on the other hand, occupies the position of derivative possessor.
While an owner who lets his property is regarded as the principal possessor, the tenant living there is a derivative possessor. A borrower, the holder of a usufruct, or persons using the property within the framework of a service relationship are likewise treated as derivative possessors.
What is taken as the basis for acquisitive prescription is principal possession; derivative possession does not of itself give rise to the acquisition of ownership.
Acquisition and Transfer of Possession
Possession arises with the establishment of factual control over the property. That control may be established at first hand, or it may be obtained by being taken over from a previous possessor.
The question of transfer carries a particular importance for the calculation of the period. In some cases the time accrued by the previous possessor may be added to that of the new possessor and assessed together, and the twenty-year period may be completed in that way.
Acceptance of that course, however, depends on the transfer having taken place in the capacity of owner and on there being both legal and factual continuity in the possession.
Cases in Which Possession Is Interrupted
Interruption of possession is one of the greatest risks so far as acquisitive prescription is concerned, for where there is an interruption the period is interrupted too and begins to run afresh. The principal situations leading to that result are as follows:
- The bringing of an action asserting ownership in respect of the property
- Factual control passing out of the possessor’s hands
- The arising of factual or legal impediments removing the possessor’s intention to dispose
- A third person beginning to use the property as owner
By contrast, impediments of a temporary character or short interruptions do not in every case produce an effect interrupting prescription. Whether possession has been interrupted must therefore be assessed within the circumstances of the particular case.
Immovable Property That Cannot Be Acquired by Prescription
Not every property may be acquired by way of acquisitive prescription. As places dedicated to the public benefit or under the dominion and disposition of the State cannot be the subject of private ownership, acquisitive prescription cannot be operated in respect of them.
Areas under the dominion and disposition of the State. The Constitution and the relevant legislation do not permit private ownership to be established over places of that character; such properties cannot therefore be acquired by prescription.
Forests. As places having the character of forest are regarded as public property, they cannot be the subject of private ownership, and the provisions on acquisitive prescription cannot be operated in respect of such properties.
Pastures. Places having the character of pasture, summer pasture and winter quarters are likewise among public property; private ownership does not arise over such areas.
Shores. The shore strip is open to the common use of all and is under the dominion and disposition of the State. For that reason ownership cannot be acquired by prescription over properties having the character of shore.
Other places dedicated to public service. Properties set aside for public service, such as roads, squares and parks, likewise cannot be acquired by this route. However long the factual use of such a place may continue, ownership does not arise.
The Parties to the Action for Annulment of Title Deed and Registration
In actions for annulment of title deed and registration founded on acquisitive prescription, the correct identification of the parties is a procedural question of as much importance as the merits. Directing the action against the wrong party may cause it to be dismissed on procedural grounds or may prolong the process unnecessarily. The capacities of the parties must therefore be established scrupulously, having regard to the particular circumstances of the case.
Who May Be the Claimant
Persons asserting ownership on the basis of acquisitive prescription may bring this action. The power to bring the action is conferred on the following persons:
- The person who uses the property in fact and relies on possession
- Persons who occupy the position of joint possessors of the same property
- Where the possessor has died, the heirs he leaves behind
- Persons having a legal interest in the acquisition of ownership
Who Is to Be Named as Respondent
The action is as a rule directed against the person appearing as owner of the property in the register. Depending on the legal position of the property, however, the circle of respondents may widen:
- The person recorded as owner in the register
- The Treasury, where the entry has been created in the name of the Treasury
- The relevant municipality, in places asserted to be public property and falling within municipal boundaries
- Other persons asserting ownership in respect of the property
In the case of unregistered properties and of places said to be public property, it is of great importance that the action be directed also against the Treasury and the relevant public legal entities; otherwise the action may be dismissed on the ground that a necessary respondent is missing.
Calculation of the Period
In extraordinary acquisitive prescription, the arising of ownership depends on possession continuing throughout a particular span of time. That period is the fundamental element ensuring that factual control is maintained over the long term and that this situation is recognised by the legal order. Turkish Civil Code No. 4721, Art. 713 requires, for the acquisition, that possession be maintained without dispute and without interruption for twenty years.
The accurate identification and calculation of the period is one of the matters producing the greatest number of disputes in practice. The commencement, interruption and calculation of the period should therefore be examined under separate headings.
The Moment the Period Begins
The period begins from the moment the possessor obtains factual control over the property in the capacity of owner. What is decisive is not merely that possession has arisen in fact, but that it was established with the intention of disposing of the property as owner.
The beginning of the use of a property on the basis of a lease relationship, for example, does not set the period in motion. Where a person takes the property as his own and begins to use it as owner, the period begins to run.
Situations That Interrupt the Period
Interruption of possession also interrupts the prescription period. In such a case the time elapsed until that moment is not taken into account and the period begins to run afresh. The principal situations leading to interruption are as follows:
- A third person beginning to use the property as owner
- The possessor losing his factual control over the property
- The bringing of an action founded on an assertion of ownership
- The emergence of situations removing the possessor’s intention to dispose
As can be seen, the continuity of possession is of vital importance so far as prescription is concerned.
The Question of Suspension of the Period
No general provision suspending the period, such as exists in the law of obligations, has been included in this institution. As a rule, therefore, there is no question of suspension of the period.
Nevertheless, situations may arise in practice in which possession cannot temporarily be exercised; natural disasters or short-term factual impediments are examples. So long as circumstances of that kind do not remove possession altogether, they do not produce an effect interrupting the period.
Reflecting the Acquisition in the Register: The Action for Annulment of Title Deed and Registration
In extraordinary acquisitive prescription, ownership is deemed to have been acquired once the conditions required by law are satisfied. In order for that position to be entered in the land registry, however, an action for annulment of title deed and registration must in practice be brought. The action is directed at removing the discrepancy between the factual situation and the register, and its aim is that the right acquired by the possessor be recognised in law and entered in the record.
The Legal Nature of the Action
This action does not bring about the acquisition of the right of ownership; it secures the establishment of a right already acquired and its reflection in the register. In that respect the action is not constitutive but declaratory in nature.
The court does not create ownership; it determines the existence of the right that has arisen by operation of law and orders, in accordance with that determination, that the entry be deleted and the property recorded in the claimant’s name.
The Court with Subject-Matter and Territorial Jurisdiction
In these actions subject-matter jurisdiction belongs to the Civil Court of First Instance.
As to territorial jurisdiction, the court of the place where the property is situated has jurisdiction. As the rule of mandatory jurisdiction applies in actions concerning the substance of rights in immovable property, the action may be brought only in the place where the property is situated.
Burden of Proof and Evidence
The burden of proof lies on the claimant. The claimant must establish that all the conditions of extraordinary acquisitive prescription are satisfied. The principal items of evidence relied on in practice are as follows:
- Cadastral and land registry records
- Records held by the village headman’s office and the municipality
- Tax records and official documents
- Subscription records such as those for electricity and water
- Photographs and documents showing use
- Witness statements
- On-site examination and examination by a court-appointed expert
Corroboration of the factual use by witness statements is in most cases the element determining the outcome in files of this kind.
Interim Injunction
While the proceedings are pending, an interim injunction may be sought in order to prevent the property from passing to third parties or to preserve the existing position.
An order for an injunction directing that an annotation be entered on the land registry record or that transfer be restricted performs a protective function preventing the claimant from suffering a loss of rights.
Court Fees and Attorney’s Fees
As actions for annulment of title deed and registration concern a right in rem, the value in dispute is determined by reference to the value of the property and the court fee is calculated accordingly.
If the action is upheld at the end of the proceedings, the litigation costs and attorney’s fees are as a rule borne by the respondent. If the action is dismissed, those items remain with the claimant.
Appellate Remedies
The decision given by the civil court of first instance may, where the conditions are present, be subject first to appeal and then to appeal on points of law.
Proving the possession and the condition as to the period in full is therefore decisive for the decision’s prospects of surviving review by the higher courts.
The Consequences of the Action
The decision to be given in an action for annulment of title deed and registration brought on the basis of extraordinary acquisitive prescription establishes the position of ownership over the property conclusively. The consequences that arise differ according to whether the action is upheld or dismissed.
Annulment of the Entry and Registration in the Claimant’s Name
If the action is upheld, the court orders the deletion of the existing entry relating to the property and the registration of the property in the claimant’s name. With that judgment the old entry in the register is set aside, the property is recorded in the claimant’s name and the claimant acquires the capacity of owner.
The court’s decision constitutes the legal basis of the operation to be carried out in the register; once the decision becomes final, the necessary registration is effected by the land registry directorate.
Registration in Proportion to Shares
In some cases several persons are in joint possession of the property. In such cases the court may, having regard to the extent of the possession and the proportions of the parties’ factual use, order the registration of the property in the form of shared ownership. Under such a decision the property is divided in the proportions established and each claimant becomes owner to the extent of his share.
Where the Action Is Dismissed
Where the action is dismissed, the claimant’s assertion of ownership founded on acquisitive prescription has not been accepted. As a result the existing entry in the register continues in force, the claimant does not acquire ownership, and the litigation costs and attorney’s fees are borne by the claimant.
A decision of dismissal arises in particular in files in which possession could not be proved or in which the conditions of prescription have not been made out.
Finalisation of the Judgment and Its Effect on the Register
Once the judgment becomes final, the decision is sent to the land registry directorate and the necessary operations in the register are completed. From that stage the ownership of the property has passed to the claimant in accordance with the register.
In that respect the court’s decision performs the function of establishing the existing legal position and adapting the land registry to that position.
The Independent Legal View
In files founded on extraordinary acquisitive prescription, the dispute is a question of proof rather than of legal argument. It is not enough to assert that the twenty-year period required by law has been completed; it must be established by documents and witnesses on what date that period began, that it was never interrupted, and that possession was maintained with the intention of an owner. A significant proportion of files are dismissed at precisely that point — because of uncertainty as to the commencement of the period, or because the use is characterised as derivative possession.
The second critical point is the legal character of the property. However long possession may continue in a place having the character of forest, pasture or shore, or regarded as being under the dominion and disposition of the State, ownership does not arise. Before the action is brought, the following matters must therefore be clarified:
- Determining the character of the property through the cadastral, forest and pasture boundary records
- Establishing concretely, through dated documents, the commencement date of the possession
- Assessing whether the period taken over from the previous possessor may be added
- Clarifying whether the use rests on the capacity of owner or on a lease or similar relationship
- Removing the risk of a missing respondent by joining the Treasury and the relevant public legal entities to the action
- Selecting the witnesses on whom the on-site examination and the expert examination will be based, having regard to their level of local knowledge
Independent Legal provides advisory services and litigation representation throughout the whole of the process, from the preparation of evidence to the entry of the registration decision in the land registry, in claims of ownership founded on possession.