PRESUMPTIVE OWNERSHIP OF REAL PROPERTY

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.