Bulgarian Constitutional Court rules 16-year moratorium on the acquisition by prescription of state and municipal properties unconstitutional
By its Ruling No. 3/24.02.2022 on Constitutional Court Case No. 16/2021, the Bulgarian Constitutional Court declared unconstitutional the provisions of §1(1) of the Law on Supplementing the Property Act (LSPA) (Promulgated in State Gazette No. 46/2006 last supplemented SG No. 18/2020) and §2 of the Final Provisions of the Law on Amending the Property Act (FP/LAPA) (Promulgated SG No. 7/2018, effective 31.12.2017), imposing a moratorium on the acquisition by prescription of state and municipal property.
In its Ruling the Constitutional Court proceeds from the assumption that the retention of state and municipal properties is a legitimate goal allowing for some legal restrictions to be imposed on the right of ownership, including the acquisition of property by prescription. Notwithstanding the above, said provisions are unconstitutional as they come in conflict with the requirement of proportionality as an element of the principle of fairness specifically prescribed in the Constitution. The assumption is that if the duration of the imposed moratorium on acquisition of property by prescription is too protracted anyway, its subsequent extension would only exacerbate its being at odds with the underlying principles of the Constitution. The ruling refers to the view, permanently enshrined in constitutional case law, that the inability of the State to perform its functions cannot serve as grounds for restricting constitutional rights: a long enough period of time has been provided during which neither the State nor the relevant municipalities had undertaken the necessary steps to take legal possession of their properties. The restriction, therefore, is constitutionally untenable. In its ruling the Constitutional Court explicitly states that by declaring said provisions unconstitutional, it does not invalidate them retroactively. In other words, elapsed periods of time during which the relevant entities were de facto in possession of said properties will not be considered in determining whether a piece of property was acquired by prescription. The prescription period will commence 3 days from the date of promulgation of the Constitutional Court Ruling in the State Gazette, i.e. it will be from that date onwards that 10 years will be counted, respectively 5 years in the case of possession in good faith, in order for a state or municipal property to be acquired by prescription.