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Buying property in Bulgaria - some complications

Generally speaking, only a title deed signed before Notary (Notarialen akt, „Нотариален акт“), in the Notary’s office, could transfer the ownership over property in case of intended sale (this article excludes the other cases of acquisition – in a public auction, with an administrative order, etc. It considers the cases of adverse possession as far as they are related to the topic).

However, sometimes people are too naive or negligent and they sign documents which are different or hand out money without any papers to be signed.

There are few possible scenarios (maybe not exhaustive due to the variety of situations):

1)      You have signed a preliminary agreement in a written form, out of the notary’s office and without Notary

The preliminary agreement regarding immovables must always be in a written form and a Notary is not required but you need to know that even if you sign such, you are not the legal owner of the property yet. The preliminary agreement must consist of all the significant provisions of the final agreement, the title deed, but is not such.

If you have signed a preliminary agreement and for one reason or another it has not led to a final agreement in the form of a title deed signed before Notary, you may always claim to the Court to announce this agreement for final. Of course if you are not the faulty party, and of course, if you do it within the time, provided by the statute of limitations (5 years in the common cases) or even later if the defendant does not assert a statute of limitations estoppel (which is only a probability).

You cannot acquire ownership over property based on adverse possession for a period of 5 years (see below) because the intention and the will of the parties were for a sale indeed. You are deemed as an “ordinary, mala fide possessor, possessor in bad faith” for the purpose of acquisition of property by adverse possession (see below), but you are entitled to exercise the rest of the rights, given to the bona fide possessor as a defence to eventual eviction as listed in par.2 (see below).

2)      You have signed a title deed before Notary without having a notice of defects in the title or the outstanding rights of others but these defects/rights were discovered later

 

The title deed could be declared as void or voidable later on. Nevertheless, you are deemed to be a bona fide purchaser, i.e. a person who bought the property in a good faith not knowing you are buying from non-owner or that the title deed suffers from defects and you can occupy the property as a bona fide possessor. On the contrary – if one is aware that he is buying from a non-owner or is aware of the defects in the title upon signing it, he is deemed to be a mala fide possessor. The good faith is assumed till proved otherwise.

Because initially you “bought” the property on the basis of a document seemingly “suitable” to transfer ownership or you have been convinced that you are buying from the real owner, you may acquire the property by adverse possession for a period of 5 years (unlike par. 1 above) if some conditions are met.

 

As a legitimate possessor you may protect your right in court if you consider it has been violated. To do so you need to show that you have been in a continuous possession for more than 6 months. This claim could be lodged within 6 months deemed from the violation/your notice of it. If the property has been taken away by force or by unknown to you means, you could claim the return of the property from any person within 6 months.

 

The owner on the other part, could claim the return of the property, held or possessed by any person without any justification within the time, provided by the statute of limitations (5 years in the common cases), deemed from the unlawful occupation.

 

Rights of the possessor upon eviction:

 

Bona fide possessor

- Is entitled to all fruits received before the legal interruption (through service of judicial summons) – natural, industrial or civil;

- Has the right of retention until reimbursement;

- Is entitled to be reimbursed for the useful and necessary expenses made to preserve the property

- Is entitled to be reimbursed for the improvement made in the property - the owner must refund the amount of expenses or pay the increase in value which the property may have acquired

 

The mala fide possessor:

-Reimburses the owner for the fruits received and those which the legitimate possessor could have received;

-Reimburses the owner for the omitted future benefits he would cause to the owner;

- Is entitled to be reimbursed for the necessary expenses made to preserve the property;

- Is entitled to be reimbursed for the improvement made in the property but only to the lower of - the amount of expenses and the increase in value which the property may have acquired. If the owner was aware of these improvements and did not object them – the rules for bona fide possessor apply (regarding the improvements).

 

Neither the possessor in bad faith nor the one in good faith are entitled for reimbursement of luxurious/ornamental expenses.

Adverse possession

Acquiring property by “adverse possession” is the process by which a person can become owner of property after having occupied it for a specified period of time and some additional conditions have been met. This term in the Bulgarian law is slightly different in nature from the term used by the UK Land Registration Act 2002. However, the continental legal systems use the term acquisitive prescription”.

This term means that a person wishing to claim adverse possession of property would need to continuously occupy the land for five/ ten years (five years – for bona fide possessor and ten years – for mala fide possessor!) and to meet certain conditions.

 

In both cases there are two elements a person needs to establish to claim adverse possession regardless the period of possession. The claimant needs to prove the following:
 
 - The possession is factual, undisturbed, exclusive, uninterrupted, continuous, open and well-known by the public, adverse to the others, for the statutorily defined time period
 
 - “The intention” of the claimant is to hold the property during that period as his/hers but not to hold it for somebody else.
 

For factual possession, the claimant may acquire possession of the property by taking possession of property that has been “abandoned” by the “real” owner in one way or another (excluding the so called “public municipal/state properties”). Any third persons must not challenge the fact that the claimant is occupying the property. If the real owner is trying to evict the possessor of the property or other third persons are claiming rights over it, then the possession is not "undisturbed, exclusive, uninterrupted, therefore the property cannot be acquired by adverse possession. The possession must not be granted under lease, licence, tenancy* or similar agreements either. There must be a sufficient degree of exclusive physical control over the property in accordance with the nature of the property and the manner in which this property is commonly used. The person in possession must have been dealing with the land as an occupying owner might have been expected to deal with it and no one else must have done so. An example would be the occupation of a “field”. The claimant would need to maintain the land and regularly cultivate the land for example by mowing the grass, tending to flowers, and cutting trees. The claimant would need to regularly use the land perhaps by growing crops on it and treat the land like their own exclusively and as the title owner would have done.

The claimant must establish that they intended to possess the property during the period of possession i.e. the claimant must intend to possess the property and not occupying it by mistake. This must be an intention to possess in the claimant's own name, on their own behalf and to the exclusion of all others. A claimant could show they had possessed the land continuously to the exclusion of all others for example by fencing the land off or growing hedges around the land for their exclusive use. Paying taxes for the property or utility bills is not a sufficient evidence itself for this intention.

Once the above conditions are met, the claimant will then need to make an application to the Notary or to the Court supported by satisfactory evidence - certain documents (tax certificate, certificate from the municipality that the property is not municipal, etc.) and 3 witnesses who will sign a sworn statement outlining details of the claimant’s possession of the property for the requisite period of time. The result of the procedure will be a legit title deed. However, the “real” owner has a statutory period of time to challenge the adverse possession in courts, and if they do so and succeed the adverse possession title deed fails.

3)      You did not sign any papers but you paid the price of the property

This hypothesis could arise in the cases of so called “unjust enrichment” (restitution, quasi-contract).

The unjust enrichment is a general principal in the Law that no person should be allowed to profit at another's expense without making restitution for the reasonable value of any property, services, or other benefits that have been unfairly received and retained.
Unjust enrichment is not based on an express contract. Instead, litigants normally resort to the remedy of unjust enrichment when they have no written or verbal contract to support their claim for relief or they hold the property in the name of the owner and on his behalf (lease). The unjust enrichment claim could be filed only if you do not have any other means for defence (such as the claim for improvements made by the possessor).

Unjust enrichment as a legal institute consists of four elements:

 

  1. An enrichment

Example: The seller received the price for the property and he has more money in the bank now. 

  1. An impoverishment

Example: You took a loan to buy the property. 

  1. A connection between the enrichment and the impoverishment
  1. Absence of a justification for the enrichment and impoverishment –the benefit has been received without any reason (condictio sine causa), etc.

Example: You paid for the property but you did not enter into any agreement with the seller.

 

In the examples above the owner needs to reimburse you the amount you paid for the property, i.e. the amount of the impoverishment.

These are some of the possible scenarios. The practice, of course, could bring into existence a lot more and a lot complicate situations. For that reason it is always highly recommended when dealing with property in Bulgaria to use the services of reliable, competent and devoted professional. Doing it yourself or with the help of friends could seem a cheaper option in the beginning but in the end, when things go wrong, it could become a lot more expensive one.

 

References: Ownership Act; Obligations and Contracts Act; prof. P.Venedikov, New Property Law; Ch. Goleminov, Civil Law Aspect of the Unjust Enrichment; prof. A. Kalaydzhiev, Contractual Law; Oxford University Press, Oxford Dictionary of Law; Hr. Danov, English- Bulgarian Legal Dictionary