The 30-year usufruct on a share of a real estate asset from the perspective of the provisions of art. 1,890 et seq. Civil Code of 1864. Can ownership be acquired only over a portion of an immovable property based on a 30-year usufruct, or can the useful p

JURISPRUDENŢĂ COMENTATĂ ŞI ADNOTATĂ

Abstract

Although it follows from the provisions of Article 1847 of the Civil Code of 1864 that, in order for the conditions of long‑term usucapio to be met, possession must be continuous, uninterrupted, undisturbed, public and under the name of the owner, the literature and case law have also required the existence of another quality of possession, namely unequivocality. Possession is equivocal when there is doubt as to the title under which the acts of use of the property are carried out.

In the context where possession of immovable property in undivided ownership is exercised only by one of the owners, it is presumed that he has full possession of the property for the other owners as well, so that there can be no question of useful possession leading to the acquisition by the person who exercised it of the right of ownership of the property in question, the possession thus being affected by the defect of ambiguity.

From another point of view, long‑term usucapio could not concern a share of an immovable property since the division of the right of ownership into shares is an abstract legal construction which has no material counterpart until a division of the property between the co‑owners by the formation of separate lots.

In the case of a property held jointly, where the law only presumes an equal contribution of the spouses to the acquisition of the joint property, until proven otherwise, possession of immovable property cannot be exercised by each of the spouses, in the abstract, over his or her share of ½ of the property, but by each spouse over the whole of the property, any act of material possession exercised by only one of the spouses over the immovable property relating, on the one hand, to the property in its entirety and not only to a part of it and, on the other hand, relating to possession also for the other spouse, possession thus being equivocal.