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universul juridic magazin

The potestative right of extra-tabular real estate usucapion

The potestative right of usucapion was examined, from an analytical perspective, in relation to the regulation contained in the Civil Code of 1864. The usucapion was qualified as being the way of acquiring the main real rights with ”a complex structure, gathering two elements, respectively a judicial fact to a limited extent and an unilateral judicial deed according to which a right of option is exercised as a potestative right”. Thus, a distinction was made between the possession, as a state of fact, with all the conditions required by law, including certain duration, on the one hand, and the potestative right of usucapion, which arises upon fulfillment of these conditions, on the other hand. Then effects of the usucapion – both the acquisitive effect and the extinctive effect of the main real rights – shall be produced not only on the grounds of the possession, but also as a result of exercising the potestative right of usucapion in a positive form.