Acquisitive Prescription of Land Possession

Article 245 of the Civil Act provides that ownership may be acquired through possession of real estate under certain requirements.

Article 245 of the Civil Act (Period of Acquisition of Ownership of Real Estate through Possession)

Accordingly, where there is a fact of having possessed the land for twenty years, the possessor may exercise the right to claim registration of ownership transfer against the owner at the point when the prescription is completed.

Possession with intent to own means possessing the land in question with the intention of being its owner, rather than possessing it with another's permission.

In other words, merely using or leasing the land is not recognized as possession with intent to own.

Possession with intent to own is presumed under Article 197, paragraph 1 of the Civil Act, but where the opposing party rebuts this by asserting unauthorized possession or the like, a clear intention to own and evidence thereof may be required.

Article 197 of the Civil Act (Manner of Possession)

‘Peaceful’ means possessing quietly, without resort to violence, intimidation, or coercion.

Where possession was taken by force, or where it was accompanied by violence at the outset of possession, such possession does not satisfy the requirements for prescriptive acquisition.

‘Open’ means possession in a form that is not secret and that can be recognized by an ordinary person from the outside.

In other words, the possession must be carried out in a public form so that the fact of possession can be recognized by others.

For example, if one has built and maintained a fence and has actually used the land, openness may be recognized.

The Civil Act provides for two categories according to the period of possession.

In both cases, once the period of possession has passed, ownership may be acquired through registration.

In particular, 10-year prescriptive acquisition is recognized only for a registered possessor, and in this case the possessor must be in good faith and without negligence.

This requirement is specified in Article 245, paragraph 2 of the Civil Act.

If possession is interrupted or intermittent, the prescription is broken.

The possessor must possess continuously for 20 years (or 10 years), and physical departure, abandonment of possession, and the like become factors that break the continuity of the prescription.

Where one is registered as a co-owner, even if one possesses the remaining shares, this is regarded as possessing one's own property, so prescriptive acquisition is not recognized.

Supreme Court Decision 99Da62036, 62043, decided April 13, 2001

Where one possesses part of a share of land co-owned by other persons, prescriptive acquisition is possible with respect to a third party's share that is not one's own (Supreme Court Decision 79Da639, decided June 26, 1979).

For example, where A and B each own 50% of land and C possesses only A's share, prescriptive acquisition is possible because it pertains to a third party's share that is not one's own.

Even where one possesses only part of the land rather than the entire land, if it can be distinguished by an objective indication, prescriptive acquisition is possible with respect to that portion (Supreme Court Decision 93Da5581, decided December 14, 1993).

However, a claim for registration of ownership transfer is possible only after going through registration of land subdivision (the procedure for dividing a parcel number).

According to Article 247, paragraph 1 of the Civil Act, the effect of ownership arising from acquisitive prescription is retroactive to the point at which possession commenced.

In other words, once the prescription is completed, the possessor is recognized as having the legal status not of a mere possessor, but as if the possessor had been the owner of the land in question from the beginning.

Article 247, paragraph 2 of the Civil Act specifies that the provisions on interruption with respect to extinctive prescription apply mutatis mutandis to acquisitive prescription.

Accordingly, where the following grounds arise, the running of the prescription is temporarily interrupted or suspended.

If the prescription is interrupted, the prescription period is recalculated from the beginning, and in the case of suspension, the prescription resumes after the ground for suspension ends.

Acquisitive prescription is a legal benefit held by the possessor.

However, this benefit can be waived, either expressly or impliedly, during litigation or afterward.

The Supreme Court (Judgment of September 29, 1973, Case No. 73Da762) ruled as follows.

Even when possessory acquisitive prescription is completed, legal ownership is perfected through registration.

The completion of prescription does not by itself substitute for registration, and the possessor must either file a lawsuit claiming registration of ownership transfer against the owner (or the registered titleholder), or obtain the transfer of registration by agreement in order to exercise full rights.

To file a lawsuit claiming registration of ownership transfer, the following requirements must be met.

If the requirements under Article 245 of the Civil Act are met, the court may render a judgment ordering the registered titleholder to register the transfer of ownership.

Once the lawsuit is won and the judgment becomes final, an application for registration of ownership transfer may be filed unilaterally on that basis.

After registration is completed, legal ownership based on the completion of prescription is established, and acts such as sale, gift, and creation of security can thereafter be carried out freely.

When a legal risk arises, such as an ownership dispute, a registration issue, or litigation, our law firm provides practical legal support ranging from proving the completion of prescription to lawsuits claiming registration of ownership transfer and responding to assertions of waiver of the benefit of prescription.

🔗Real Estate Specialist Attorney Legal Consultation Booking allows us to closely review whether the requirements for acquisitive prescription are met and to promptly prepare a strategic response.

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