Acquisitive prescription against the State: Statutory and case-law requirements. What happens with renunciations of inheritance where the property passes to the State?

What is acquisitive prescription?

Acquisitive prescription (chrisiktisia), as provided by the Civil Code (AK), is the legal procedure by which a person may acquire ownership of real property where they possess and use it uninterruptedly for a specific period of time, without recognising the ownership of any other person.

What happens when real property passes to the State following a renunciation of inheritance?

Under the Civil Code (Article 1847 AK), where a person renounces an inheritance, the share of the deceased passes to the Greek State, provided that there is no other heir. In such a case, the State becomes owner of the property by lawful means. Under the Civil Code (Article 1847 AK), where a person renounces an inheritance, the share of the deceased passes to the Greek State, provided that there is no other heir. In such a case, the State becomes owner of the property by lawful means.

Although the legislation protects the State, are there specific cases of acquisitive prescription against the State that may be considered in the context of renunciation?

1. Completion of the 20-year acquisitive prescription period before the renunciation: If the renunciation of the inheritance took place after the 20-year period had already been completed, the possibility of recognising acquisitive prescription may be examined.
2. Possession before the property passed to the State: It may be examined whether use of the property for more than 20 years before the renunciation can constitute a legal basis for the recognition of ownership.

Acquisitive prescription against the State in more general cases not involving renunciation

A significant breach in the provisions protecting public property was introduced by Article 4 of Law 3127/2003, which reinstated the institution of acquisition of ownership through unimpeachable possession of Byzantine-Roman law and recognises a right of ownership over urban real properties in favour of the possessor of the property, provided that:

1. The possessor has held the property undisturbed until the entry into force of the Law (19.3.2003) for ten (10) years, with a lawful title arising from an onerous cause (not gratuitous) which has been concluded and registered after 23.2.1946; or alternatively
2. The possessor has held the property without title undisturbed for a period of thirty (30) years, completed by the date of entry into force of the Law (19-3-2003). Any positive act or omission constituting interference with the possessor’s exercise of possession is regarded as disturbance of possession.
3. At the time of acquiring possession, the possessor was in good faith within the meaning of Article 1042 AK, that is to say, when, without gross negligence, they hold the belief that they have acquired ownership. If, on the contrary, the possessor knows that they have not become owner, or is unaware of this through gross negligence, there is no good faith. For the existence of good faith, it is immaterial whether the possessor’s belief as to acquisition of ownership is due to a mistake of fact or a mistake of law. Good faith must exist at the time of acquisition (commencement) of possession, while subsequent bad faith is not prejudicial. If there has been succession in possession, the period of possession completed, under the same conditions, in the person of the predecessor in title is calculated together with the period of possession of the successor. The owner of the property is not required to plead in the lawsuit, nor to prove, his good faith at the commencement of possession; on the contrary, the defendant State, within the framework of the rule preventing acquisition of ownership established by Article 4(1) of Law 3127/2003, bears the burden of pleading (and proving) the bad faith of the plaintiff or of his predecessors in title, namely that they knew or culpably (through gross negligence) were unaware that they had not become owners of the property at the time of acquisition of possession.
4. The property has a surface area of up to 2,000 sq.m., is located within a town plan, or within a settlement pre-existing 1923, or within a settlement of fewer than 2,000 inhabitants. For property with an area greater than 2,000 sq.m., these provisions apply only where, as at 31.12.2002, there is a building on the plot covering at least 30% of the applicable floor area ratio.

Acquisitive prescription against the Greek State has also been accepted by the Legal Council of the State by its Opinion 348/2004, which addresses questions concerning the application of Article 4 of Law 3127/2004.

• See also article Purchase of Real Property
• See also article Sale of Real Property
• See also article Fraud Against Buyers of Real Property by Sellers
• See also article Action for Partition of Real Property
• See also article SYPOTHA – Unauthorised Construction
• See also article Fines for Unauthorised Construction
• See also article Annulment of SYPOTHA Decision
• See also article What is the KAEK?
• See also article Pre-notation of Mortgage
• See also article Eviction of Tenant
• See also article Professional and Commercial Leases
• See also article Correction of Manifest Error – Unknown Owner – Land Registry

FREQUENTLY ASKED QUESTIONS ON Acquisitive Prescription Against the State

1. What does acquisitive prescription against the State mean?

This refers to the possibility for a private individual to be recognised as owner of real property which appears to be public, provided that they prove that they possessed it undisturbed and with the intention of an owner for a specific period of time. Article 4 of Law 3127/2003 recognised this possibility for urban real properties, under strict conditions. The legislation recognises two basic situations: either ten-year possession with a lawful title arising from an onerous cause after 1946, or thirty-year undisturbed possession without title, completed by 19.3.2003. A key element is the good faith of the possessor at the commencement of possession.

2. What can I do if I have held for years a property which is being claimed by the State?

The interested party files a declaratory action for ownership before the competent Court of First Instance, seeking to be recognised as owner on the basis of acquisitive prescription. If the State has already taken steps of claim or registration, an action for recovery of possession or an opposition against an administrative eviction protocol is also brought. In parallel, if a correction of a land registry entry showing the property as public is pending, an application for correction is submitted. The collection of evidence of possession (utility bills, aerial photographs, witnesses, cultivation, fencing, building permits) takes place from the earliest stages.

3. How long does the recognition of ownership take?

The hearing of a declaratory action for ownership against the State is a time-consuming procedure, since the State is represented by the Legal Council of the State and a thorough evidentiary process is required. From the filing of the lawsuit to the issuance of the first-instance judgment, two to three years generally elapse. Where an appeal is lodged by the State – which is the rule when it loses at first instance – the total duration may reach five to seven years. Final and irrevocable resolution following cassation further extends the timeframe.

4. What documents and evidence do I need?

All material that documents continuous and undisturbed possession is gathered. Useful items include old title deeds, private agreements, E9 declarations, receipts of Real Estate Property Tax (ENFIA) and earlier real estate taxes, electricity and water bills, building permits, topographical diagrams, aerial photographs of the Hellenic Military Geographical Service, certificates from the municipality, as well as sworn affidavits of neighbours or older residents. In the case of hereditary succession in possession, civil status certificates and certificates of nearest relatives are required, so that the period of the predecessor in title may be calculated together with your own.

5. What chances of success do I have against the State?

The chances depend primarily on the quality and continuity of the evidence of possession, the nature of the property (whether it falls within the scope of Article 4 of Law 3127/2003) and the absence of its classification as forest land or coastal zone. A significant advantage for the private individual is that the burden of proving bad faith lies with the State. Conversely, properties of a forest character, within the seashore-foreshore zone, or those which are common-use, are not subject to acquisitive prescription. Case-law in recent years has recognised a number of cases, but an individualised assessment is essential before filing a lawsuit.

6. What is the role of our firm’s lawyer?

Our firm initially undertakes the review of the title deeds, the land registry entry, the character of the property (forest map, seashore zone, classifications) and the assessment of the chances of success. There follows the collection and legal processing of the evidentiary material, the drafting and filing of the declaratory action, as well as the representation of the client at hearings against the Legal Council of the State. In parallel, the necessary land registry corrections are carried out and, where required, applications for the lifting of classifications which prevent the recognition of ownership.