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ACQUISITION BY ADVERSE POSSESSION OF OWNERSHIP SHARES

As one of the ways of acquiring the ownership of real estate under the law is the acquisition by adverse possession. It is an institute based on exclusive possession for a statutory period, where the title to real property is acquired by the disseisor who holds the property lawfully, truly and in good faith for ten years continuously or only in good faith, when the law requires twenty years of continuous possession.

Regarding the possession of real property owned by the Republic of Croatia, county and local governments and legal persons with equivalent rights, as well as the goods owned by the Church or other nonprofit legal persons that carry out charitable or public utility activities, ownership of those goods is acquired by adverse possession if the possession of the disseisor is held lawfully, truly and in good faith for twenty years, or only in good faith for forty years.

The time required to acquire title to real property by adverse possession includes the time the predecessors of the disseisor continuously held the property lawfully, truly and in good faith, or only in good faith. The successor becomes good faith possessor from the moment of the opening of the inheritance even in the case when the testator was not good faith possessor, if he didn’t know and shouldn’t have known that.

Following the above mentioned, and analyzing the recent judicial practice regarding the subject matter, it can be concluded that it is not only possible to acquire ownership of the whole real estate by the adverse possession, but also the co-ownership over a single piece of real estate in its ideal part. In accordance with the judgment of the Supreme Court of the Republic of Croatia:

“For the acquisition of co-ownership (shared ownership) there are no specific legal basis (titulus) different from those under which the ownership is acquired. According to the provisions of Art. 37 para. 3 of the Law on ownership, in legal transactions it is assumed that an ideal part of an object is an independent object itself; everything applies to objects applies to it’s ideal parts as well, unless otherwise specifically prescribed. When it comes to acquisition by adverse possession there’s nothing specifically prescribed that refers ONLY to co-ownership. Co-owners may be exclusive possessors in the sense of Art. 11 para. 1 of the Law on ownership, and this is not an obstacle for acquisition by adverse possession. Co-owners exercise the common possession not recognizing the greater power of the indirect possessor. Exclusive possessor possesses the object as if it were his own. There are no obstacles to the plaintiff possessing the real estate as a co-owner, not only regarding his part of the real estate, but also the part of the real estate of another person.”

Therefore, the co-owner can acquire the ownership of a part of the real estate that represents a certain specific part of cadastral parcel – shown by the acquirer, identified and described by the expert in his expert opinion, and all in a manner that the summons and the judgment appoint only the ideal co-ownership share.