Does a claim under Article 108 of the Property Act brought by one of the co-owners suspend the statute of limitations for the acquisition of the other’s right to the ownership of the common property?

Abstract

The article deals with the issue of the effect of a repossession claim (Art. 108 of the Property Act) filed by a co-owner against a third party with regard to the running of the statute of limitations in favor of the third party for the co-owned property. At the present time, the practice of the Supreme Court of Cassation is consistent and inconsistent in its view that when a co-owner brings an action under Article 108 of the Property Act against a third party, the statute of limitations running in favor of the defendant is suspended and accordingly interrupted solely and exclusively in respect of the ideal part of the ownership of the common property belonging to the claimant. It is thus entirely possible that, during the pendency of the proceedings or even after the conclusion of the proceedings, before the taking of possession has taken place, the third party may acquire by prescription all of the ideal parts which are alien to the claimant and that co-ownership may thus arise between the two main and opposing parties to the proceedings. The author’s thesis is that this case-law is unacceptable and that in such a situation the limitation period is suspended and, accordingly, interrupted in respect of the entire co-ownership of the property. The arguments put forward are grouped into three points and stem from: (1) the possibility for each co-owner to bring an action under Article 108 of Property Act to obtain the de facto authority over the entire property; (2) the nature of co-ownership as a legal institution; and (3) the nature of the restitution action.