UZUCAPIUNEA CA MODALITATE DE DOBÂNDIRE A DREPTULUI DE PROPRIETATE - PATRONA GENERIS HUMANI SAU O IMPIUM PRAESIDIUM?
ADVERSE POSSESSION AS A DISTINCTIVE METHOD OF ACQUIRING THE OWNERSHIP OF PROPERTY – PATRONA GENERIS HUMANI OR IMPIUM PRAESIDIUM?

Summary/Abstract: This paper studies the essence and various arguments of the doctrine of adverse possession (usucapio) - a distinctive legal way of acquiring ownership of property. Under the doctrine of adverse possession, the occupier of a land, who is not the true owner, acquires title to the land without consent from or compensation to the ‘true’ owner. A trespasser is entitled to legal ownership of property if he possesses in good faith and the tenure is actual, open and notorious, peaceful, exclusive and continuous for a period of years set by state statute. The most important is that not even the true owner of the property can bring an action to eject the unauthorized possessor. This legal institution, based on grounds of equity, has a particular importance in civil law. However, it always has been a controversial one. It is considered that we shouldn’t admit the mechanism of adverse possession because it is inconsistent with the perpetual character of the property and moreover, inconsistent with the moral norms. Thus, for a long period of time, it was the object of a huge controversy between those who took it for patrona generis humani, an institution belonging to the natural law which contributes to maintaining the social order and those for whom it represented rather an impium praesidium (the consecration of injustice ) or even a sin, a violation of the divine laws. The considerations that lead us to conclude that the institution itself is justified, are the following. First of all, adverse possession is an indirect "civil penalty” against the former owner, who, showing negligence and undignified carelessness, has left his goods for a long time in the tenure of another person who possesses them and behaves as a true owner for everyone. Another argument is that adverse possession is an effective means of probation. A third argument presents adverse possession as a tool of social order maintenance. The recognition of the legal effects of the tenure is justified primarily by the likelihood that it is, by the manifestation of exercising a real right, whose existence is transformed thus in legal certainty. But it is possible that sometimes the possession is not the reflection of exercising a real right - someone is a possesor but has got the property ownership. In this situation, acquiring the ownership by the means of usucapio, transforms the long and uncertain appearence in a legal certainty.

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