In the Principality of Monaco, as elsewhere, ownership of properties with terraces or gardens is particularly valued.
Access to terraces and gardens, whether they are part of a private or a common area, with or without private enjoyment rights of a joint ownership, can stir up the greed of the neighbourhood, or even lead to prolonged exclusive use, for such a long period of time that the illicit occupier could think of invoking the rules of acquisition through adverse possession and claim ownership rights over someone else's property.
In other words, what might initially have been tolerated in the limits of a good relationship between neighbours, could evolve into an unlawful occupation of someone else's property. Far from being a theoretical hypothesis, current legal developments have permitted the restoration of the legitimate owner's rights, with a confirmation of the regime applicable to acquisition through adverse possession.
However, this can only be achieved if the rightful owner takes swift action to assert their rights over the occupied property, and to put an end to the unlawful occupation before there is sufficient ground for the occupier to claim ownership rights.
At the very least, one needs to refer to the by-laws of the jointly owned building if applicable, and the property deed to determine the nature of the portion of the property occupied, and therefore the person (joint ownership manager or private lot owner) who will have to take action as soon as possible.
Assessing the duration of occupation and taking immediate action
The acquisition through adverse possession, which makes it possible to claim ownership of a property when one has behaved as its rightful owner, can arise as early as 10 years of occupation, or 30 years, depending on whether or not the occupier has a deed on the property of which they are enjoying exclusive use.
The ten-year period applicable to cases where the occupier owns a deed (which - by definition – will be in conflict with the deed of a third party) is therefore particularly short.
This must be carefully monitored, particularly as cases of informal division of properties by successive owners, without the requisite formalities having been carried out (amending of the description of the division of the property, and of the history of the property in successive deeds of ownership, which very often carry over existing previous mentions without further verification), are not uncommon in the Principality of Monaco.
Finally, particular attention should be paid to the duration of occupation, which may combine the occupier's possession with that of the person to whom they have succeeded: for example, in the case of an inheritance, the heir may add the duration of their possession to the duration during which their ascendants have occupied the property.
Assessing the quality of occupation to determine if it can give rise to the acquisition of rights
To give rise to the acquisition of rights, the exclusive use of the property (its possession) must be:
- Continuous and uninterrupted: without periods of interruption;
- Peaceful: the property must not be appropriated by force or illicit means;
- Public: possession must have been effected in full view, for example by the erection of gates, fences or any other means of delimiting the property;
- Unequivocal: the occupier must clearly act and demonstrate their will to act as the exclusive owner;
- Managed by the occupier as its owner: the rights exercised must be linked to ownership of the property - this may involve entering into a lease, collecting rent, carrying out work that falls within the owner's prerogatives, and so on.
All these criteria must be met cumulatively, the lack of any one of them being sufficient to deny the claimant the benefit of acquisition.
Bringing adequate proof is tricky, one way is to provide testimonies from neighbours or obtain evidence from third parties with the judge's authorization ("compulsoire").
Fortunately, it is not sufficient to simply occupy a property for ten or thirty years to acquire ownership rights. The occupier must act in good faith, have acted as a genuine owner in full view of the neighbours, and must not have occupied a property that has been explicitly excluded from the scope of the property they rightfully own.
Finally, unlawful occupation of another's property may give rise to compensation to the rightful owner for the abnormal neighbourhood disturbance caused, or even to the demolition of works built on the occupied property, if the occupier fails to demonstrate their rights.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.