Usucapio

(1) Nature and Scope

Usucapio was a civil law mode of acquisition, which allowed a non-owner to acquire ownership of property by possessing it for a prescribed length of time.^[1375] When usucapio had operated, the possessor became owner.

Until that happened, the possessor would have the protection of the actio Publiciana against anyone but the owner of the property.^[1376] The claimed purpose of this is to reduce uncerВtainty over title to property:^[1377] if possession ripens into ownership after a period of time, then an acquirer ought to be safe from any challenge to his or her title if he or she has acquired the property from someone who has possessed for that period. In practice, however, the usefulness of usucapio would have been much reduced by certain limitations on its applicability.

We are told that res sacrae,^[1378] ^{^[1379] res religiosae²⁰² and runaway slaves were excluded from usucapio, and also that ownership of a free person could not be acquired in this way (in other words, a free person could not become a slave through usucapio).^[1380] Things belonging to the exchequer of the state were subject to a general excluВsion.^[1381] The most important exclusion, though, was stolen property. Such property was excluded from acquisition by usucapio, a rule that Justinian attributes to both the Twelve Tables and a lex Atinia of the second century BC.^[1382] This rule did not simply prevent the thief acquiring by usucapio: the thief would not be in good faith anyway, which, as we shall see, was required. Instead, the fact of the property being stolen tainted it and prevented the operation of usucapio altogether, even when the property came into the hands of a third party in good faith. Stolen property could only become available again for acquisition by usucapio if it was first returned to the owner.^[1383] This exclusion of stolen property greatly restricted the scope of usucapio in respect of moveables.}

It could, however, still apply in those cases where goods came into the hands of a non-owner without any theft having occurred. An example would be the case where an item was found among a deceased person's effects, and was assumed to belong to the deceased, but which in fact had only been borВrowed or hired. It does seem, though, that the error could be one of either fact^[1384] or of law.^[1385] Land could not be stolen, and so the acquisition of land by usucapio was not subject to this restriction. A limitation of similar, but narrower, scope did apply to land, however: where possession of land was taken by force, it could not be acquired by usucapio.^[1386] ^{^[1387] If the land was occupied by stealth, however, in the absence of the owner, it could be acquired by usucapio?¹⁵ The requirements for usucapio are considered in more detail below. However, in brief, the position was that the acquirer had to take possession in good faith, and in circumstances where there was a iusta causa (just cause) for that taking of posВsession, such as a sale to the acquirer. The acquirer then had to retain possession for a specified period of time, the relevant periods being different for land and for moveables. Until the position was changed by Justinian, land could only be acquired by usucapio if it was Italic land, in other words land in Italy.^[1388] In the late classical period, there developed the longi temporis praescriptio (вЂlong term prescripВtion'), which allowed the acquisition of provincial land by possession for ten or twenty years, depending on whether the parties were domiciled in the same or difВferent provinces. The possession had to be taken in good faith and on a iusta causa, as with usucapio.^[1389] There also developed in the post-classical period a longissimi temporispraescriptio (вЂvery long term prescription'), where a possessor could acquire ownership after forty years' possession,^[1390] later reduced to thirty,^[1391] even without good faith or iusta causa.
(2) Good Faith
Only someone who was in good faith could acquire by usucapio.^[1392] Good faith, though, does not have quite its normal meaning here of belief in ownership of the property.
Normally, it is true, a person who knew that he or she was not owner could not acquire through usucapio. However, in Chapter 11, we saw the special case of the bonitary owner, a person who had acquired a res mancipi by traditio^[1393] Such a transfer was not valid, so the bonitary owner knew that he or she was not in fact owner, however much the law treated him or her as owner. Nonetheless, a bonitary owner was able to acquire by usucapio. A bonitary owner's possession was, however, at least honest, in that he or she did not believe that that possession wrongfully infringed anyone else's rights.^[1394] In the normal case, it was only necessary to begin possession in good faith.^[1395] A person who took possession in good faith, but then subsequently discovered the property actually belonged to someone else, could nonetheless acquire by usucapio.
(3) Iusta Causa
As with the transfer of ownership by delivery (traditio),^[1396] usucapio could only operВate if there was a iusta causa (вЂjust cause') underlying the possession. This is some sufficient legal basis for a valid transfer, such as a sale or a gift. This requirement would prevent anyone who simply moved onto vacant land acquiring by usucapio (although someone acquiring the land from that person on the basis, for example, of sale could acquire). Unlike one view of delivery, however,^[1397] it seems that in usucapio the iusta causa had to be genuine.^[1398] So, if I believed that I was acquiring from you under a contract of sale, but you believed the transaction to be a gift, usucapio would not operate in my favour. It appears that acquisition by succession did not count as a iusta causa for usucapio.^[1399] ^{^[1400] Accordingly, even if the heir was in good faith, he or she did not acquire where the deceased had been in bad faith. If, however, the deceased was in good faith, usucapio would continue to run in favour of an heir in bad faith.}
(4) Possession
To acquire by usucapio, it was necessary to possess the property for the required period. This had to be actual possession as if owner. Accordingly, for example, a tenant could not acquire the property by usucapio ^22S The periods of usucapio were laid down in the Twelve Tables, and continued to apply through the classical period and beyond. For moveables, the required period was one year; for Italic land, two years.^[1401] The period was extended byJustinian to three years for moveables; for land, the required period was extended to ten years if the parties lived in the same province, twenty years if different provinces.^[1402] This extended to Italic land the periods developed for provincial land under the longi temporispraescriptio.
The possession did not all have to be by the same person. If the possessor died in the course of acquiring by usucapio, the period for which the deceased had posВsessed could be added to that of the heir to make up the whole period required.^[1403] In the same way, a purchaserвЂ™s period of possession could be added to the seller's to complete usucapio.
(5) Modern Law
Most legal systems have a system like usucapio, by which ownership of property can be acquired by possessing it for a period of time. Scots law is no exception, at least for land.^[1404] There is no such rule for corporeal moveable property.^[1405] The Scots rules, however, have their origin in legislation of 1617,^[1406] rather than in Roman law, and are quite different in a number of respects.^[1407] Scots law also has nothing equivalent to the actio Publiciana to protect the possessor in the course of acquisition. However, the importance of possession in both the modern law and the Roman law means that the Roman texts may be found to have continuing relevance.}

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Source: Anderson Craig. Roman Law for Scots Law Students. Edinburgh University Press,2021. вЂ” 496 p.. 2021

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