Preliminary communication
https://doi.org/10.30925/zpfsr.43.3.11
PRESUMPTIVE OWNERSHIP OF REAL PROPERTY
Hano Ernst
; Faculty of Law, University of Zagreb, Zagreb, Croatia
Abstract
The paper covers the legal position of a presumptive owner under Croatian law,
with a particular emphasis on the issue conflicts between presumptive owners and
creditors of the registered owner. The introductory part discusses the legal nature
of presumptive ownership and the acquisitive function of registration, including
exceptions to such function that undermine the monopoly of land registers in
publicizing property rights in land, wherein presumptive ownership, based on adverse
possession, comes close to such an exception.
The paper discusses and elaborates on the fundamental causes of unregistered
singular transfers, particularly during the period of social ownership, but also in the
following period of its transformation. While tracking the historical development of
presumptive ownership in Roman law, the paper analyses typical situations where
presumptive ownership finds its justification that still applies today. The second part
of the paper presents the mechanics of acquiring and losing presumptive ownership,
including acquiring and losing lawful, peaceful, and bona fide possession, both from
a registered and an unregistered owner. The third, central part of the paper reviews
in detail the various remedies for protecting presumptive ownership, including
vindicatory and negatory protection, quasi-expungement, and segregation petitions.
The paper analyses the conditions for filing presumptive ownership vindicatory and
negatory petitions, particularly the factors determining the strength of possessory
title (bona fide, lawfulness, predecessor identity, consideration), as well as defendant
objections against such actions. Special attention is given to quasi-expungement
suits as specific remedies used in cases of multiple sales of the same property that
secures the acquisition of registered ownership for presumptive owners by way of
registration against mala fide registered acquirers, albeit to a limited degree. Finally,
the paper critically discusses and analyses the protection of presumptive ownership
in enforcement and bankruptcy proceedings, having in mind the development of case
law that has long held various positions on the question of segregation motions filed
by unregistered and presumptive owners, ultimately leading up to a general holding
of the division the Supreme Court of the Republic of Croatia.
Keywords
property; adverse possession; presumptive ownership; segregation
Hrčak ID:
287852
URI
Publication date:
20.12.2022.
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