Glasnik Advokatske komore Vojvodine (Jan 2015)
On legal possession as a precondition for acquiring ownership through positive prescription
Abstract
The history of law has taught us that items are subject to human actual or legal power. Having actual power over the item means to be a holder. Actual power is a fact in the law. Actual power over the item is usually derived from the ownership on the item. However the social and historical circumstances were not always favorable to everybody. Through the history some were owners, land owners, holders of titles and wealth, while the others were only holders. They did not have the ownership, but had possession, used the items and took care of them like they were their own. The intent to harmonize actual and legal status always existed. The legal concept of positive prescription, acknowledged in the ancient Roman law, is an instrument by which this intention is enforced. It is enough to meet the criteria set by the legislator to transform the actual status into the legal one. One of the criteria is legal actual power. The subject matter of the analysis is primarily legal possession and its impact on acquiring ownership through positive prescription. The main idea is to explain, through the theory and several examples in practice, what is legal prescription, the relationship between legal and legal-ownership possession, the relationship between legal and real-deficient possession, to elaborate which legal transactions are suitable for acquiring ownership through positive prescription, and to explain the impact of deficiencies in legal transactions on acquiring ownership through positive prescription.
