The implications of 30-year acquisitive prescription with regard to notarial acts

Abstract

The subject-matter of this professional report is 30-year acquisitive prescription. This report will start by differentiating between the different types of title; the 10-year onerous title on the one hand, and 30-year prescriptive title on the other. Firstly, the report shall briefly explore the concept of ‘usucaptio’ in Roman law. Subsequently, this will be followed, by way of comparison, by the French Napoleonic Code where relevant jurists such as Baudry-Lacantinerie will also be tackled. In addition to these, the Maltese law will also be examined. The aforementioned are all important sources of law with regard to acquisitive prescription. The main focus of this report is to provide an in-depth analysis of each of the components necessary to determine acquisitive prescription safely. Such components will be applied in light of the Notarial process of preparing a deed of transfer - that is, in practical terms. Indeed, a Notary may face problems when it comes to a transaction where an acquisitive title is used, as this involves a fair share of risk on the part of the purchaser. Therefore, this report hopes to arrive at a methodology that if followed should result in the most favourable outcome and the least uncertainty. The terms set out in the Maltese Civil Code and other ancillary pieces of legislation such as the Land Registration Act will be examined with the understanding derived from case law. Case law serves to illustrate the practical implications of the written law as well as the interpretation that is prevalent within the local judicial system. Indeed, purely theoretical interpretations may give rise to problems as in actuality, case law would construe valid only one interpretation of the law - this should be kept in mind when dealing with clients in a practical scenario. As previously eluded to, this study will also go into the evidence Notaries make use of in practice when trying to establish acquisitive title and how this is referenced in the notarial deed. Besides this, the ramifications of deeds gone wrong will be seen also. This report is relevant for the reason that should the deed be taken to Court and plaintiffs produce a better title or establish evidence to demonstrate bad faith in the transfer, this could lead to a judgment effectively annulling a Notarial act. Relevance to the Notarial Field This report is of particular relevance to Notaries because of the implications applying thirty-year prescription may have on clients. All the findings will be brought together with the aim to provide standards which Notaries can use and abide by so as to safeguard purchasers when purchasing property without an onerous title. This therefore helps minimise the associated dangers that come along with purchasing property via thirty-year prescription.