Justification of Acquisitive Prescription in the Civil Law System. Why is It Not an “Uncompensated Deprivation?

Acquisitive prescription (a civil law institute) and Adverse Possession, its equivalent in the common law system is alreadya consolidated private law institute. It is recognised from the legal systems of almost each country in the world and is among the most important original ways of gaining ownership.Its constitutionality and the fact that should it be recognized from a legal system or not was brought in question in 2002, sparking a debate between lawyers in the world. The debate rose after the announcement of the decision of the ECHR (European. Court of Human Rights) in the case JA Pye ( Oxford) Ltd vs Graham. The Fourth Chamber of the ECHR held that acquisitive prescription is actually an 'uncompensated deprivation. First, we will analyze the main theories on the basis of which this institute is justified. The question to be raised for the review of the article is whether prescription is morally and legally justified, especially in the case of prescription in bad faith. In the end, it will be reached the conclusion that there are justified reasons for the prescription and it is a very useful institution inthe civil circulation. But preliminary stricter legal criteria must be met for the recognition of the property right by prescription, especially in the case of bad faith prescription. The law should aim to provide a greater protection to the legitimate owner.

I. Why the need for justification of adverse possession. 1   The strange and wonderful"' doctrine of adverse possession."(Stake,2001) shows interestfor Study because it is one of the institutes of law, known as the common law and civil law, which contains many contradictions.Application of this institute always has faced strong debates and controversy, as in its implementation both in private law and in public law. 2   Although this institute is found in both systems of law, mostly efforts to justify it are made by the researchers of common law.But it is difficult to find a single justification for the doctrine of adverse possession, as it can be applied in different cases and situations that may vary greatly from one another.
The debate on justification of adverse possession has centuries that goes on.Since the beginning of nineteenth century the famous American judge Holmes has described adverse possession"a pure evil" Some authors say that adverse 1 Acquisitive prescription" is term used in civil law, and "adverse possession" ne common law.After a possession that continues for a certain period of time explicitly in law, a holder may become the owner of movable or not movable property .Per this he needs to establish the court, on the expiry of adverse period a lawsuit on "Knowing ownership through adverse possession ".If the user knows that is using someone else's land , is called misfaith, if the user thinks that the land is his is called possession in good faith..Goodfaith is important only in civil law, not in common law.. 2 "Ever since the days of Grotius,there has been considerable discussion on the contents and function of…acquisitive prescription, while some of the leading international lawyers of the 19th century such as Fedor von Martens (1845Martens ( -1909) ) and Alphonse Rivier (1835-1898) disputed their place in international Law."(Lesaffer, 2005, page 47) There are other authors who think that despite the cancellation is the right way, in order to achieve the cancellation of this institute will pass plenty of time, so their suggestion is tofine the owner who in spite of having aregistered titled, has not paid dues as owner (did not pay property tax, or does not maintain it (Heap,2010)It has also been suggested that to the society can be caused a serious damage especially in case when the state property is acquired by AP (which shows that negligence of government institutions to exercise it rights as owner undermines the whole society.)Someother authors even believe that AP promotes illegal possession of land (Yin Teo,2008).This author even thinks that AP in bad faith should no longer be recognized by Australian legislation 1 Clarke ,2005, page 570 2 Ballantine,page 135 3 Clarke,2005, page 602 4 Cercel, 2010, page4 "it is essential that such restrictions should in no way effect the ground itself of this right, that the ownership right could never be completely annihilated." 5"On voit donc qu'il s'agit d'une institution à la fois utile parce qu'elle consolide les droits des propriétaires légitimes et redoutable parce qu'elle permet à un simple possesseur d'être préféré au propriétaire en titre."(Buffet, 6 Burns even suggests canceling the application institute AP in Australia, considering duke e konsideruar: "rough-and-ready' doctrine, which has the potential to undermine the otherwise indefeasible interest of registered proprietors."(Burns,2011, page 1) Also a study conducted by the Hong Kong government in 2012 provides that AP can not have any moral justification."There is no justification for what is essentially a transfer of property without compensation from the deserving to the undeserving.." 1 While some authors thought that the AP in bad faith, at first glance creates the idea that "undermines the security and exclusivity of ownership" , therefore affect the essence of the property right.Exactly the criticism directed against this doctrine, promote the duty to justify it, as an institution that is supposed to be effective for many years to come.

b) Researchers in favor of AP
Despite the controversy, some researchers have noted that "If we had no doctrine of adverse possession, we should have to invent something very like it."(Stoebuck & WhitmanMany other scholars agree that APis entirely justified."Theconcept of adverse possession is called-for and economically justified within a property order." 2 Clarke suggests that AP should definitely continue to exist as the right of ownership is an interaction between power over the property of people at the same time.So, possession, as task of ownership, means to communicate to others constantly that you are the owner of the item.Through AP, communication must continue steadily, otherwise you can lose not only the task of possession, but entirely real subjective right of ownership. Despite that AP somehow resembles with theft, as we will argue ongoing,benefits from this institute for society as a whole are much greater than its costs."Regardless of the moral argument that adverse possession is wrong and tantamount to stealing, it can be demonstrated that the benefits outweigh the detriment. 3" AP is considered an efficient institution, especially in the case of states that have passed conflicts, where land system has been very unsafe for a long period of time, like Timor-Leste (Williams,2009) or Cambodia ,also in developing countries like Brazil,Peru (Phalthy,2007) This institute will enable to solve quickly ownership conflicts and consequently to develop more the economy of these countries.Some researchers, like Marais, has concluded that not only AP has a moral and economic justification, but it is in accordance with the constitution of South Africa.
There are opinions that the AP goes againstto the constitutional provisions of a state and of the European Convention that recognize the right of property .But for some authors, AP can not be against the right of ownership, because otherwise possession as the institute would have no value"If it is incompatible,the impact of possession as a means of extinguishing a former title in land and creating a new one as discussed in this article is reduced to a meaningless concept ." 4espite the debate that still continues in doctrine regarding AP and disagreement about this institute, the following excuses will again show us why this institute is still recognized by most of the countries in the world (excluding China).

III-Justifications
Among the main justifications that different authors have consistently cited in the literature for this institute, can be mentioned:

In silence, the owner allowed land use by someone else
Merril calls this" justification of sleeping owner"while Stake uses the famous phrase"you snooze ,you lose ".So, the owner of the land can do whatever he wants with his land, can even leave it without working.Leaving the land without working, is not an justification for AP .But the negligence of the owner and leaving the ownership in the hands of someone else is the main justification. 1 The owner may leave uncultivated the land, but should not allow someone else to work it .This is one of the most common justifications accepted by the various authors (Greenberg,2010;Turley,2013) Singer also is of the opinion that it is the silence of the owner that justifies this institute:"It is morally wrong for the true owner to allow a relationship of dependence to be established and then to cut off the dependent party.." 2   If AP would not be recognized as an institute, it would be morally unjust by the owner, to allow a quiet uninterrupted possession of the holder, and then to cut off the relationship created (This fact is even more evident in the case of prescription in good faith, where there is a connected transaction between the owner and the holder).Having a right means at the same time to do all lawful action to protect it.If the owner does not protect its right of ownership for a time so long, taking his property is fully justified."Sometimes it is said that,if a man neglects to enforce his rights,he cannot complain if,after a while,the law follows his example." 3   Even the Supreme Court of England has admitted that the main purpose of AP is to protect the holder who has used the land for a long time.. 4 So with this excuse, we see AP as punishment against the owner, who did not exercise his rights (Marais,2011).So, the conduct of the owner himself by approving someone else to use his land is rated as the main reason, that would justify the use of AP institute in the field of intellectual property .(Bagley &Clarkson,2003) Therefore AP has retroactive effect and the holder shall be deemed the owner from the moment that has entered into possession of the item .Because just in that moment, the owner with his behavior has allowed the use of his property by third party.By encouraging owners to exercise their right of ownership, AP promotes and facilitates transition of ownership transactions.So with this excuse, we see AP as punishment against the owner, who did not exercise his rights (Marais,2011).
That is why the conduct of the owner himself by approving someone else to use his land is rated as the main reason, that would justify the use of AP institute in the field of intellectual property .(Bagley &Clarkson,2003) Therefore AP has retroactive effect and the holder shall be deemed the owner from the moment that has entered into possession of the item .Because just in that moment, the owner with his behavior has allowed the use of his property by third party.By encouraging owners to exercise their right of ownership, AP promotes and facilitates transition of ownership transactions.. 5 This excuse has been criticized by one of the judges of the casePye vs ... Judge Neuberger says there is no reason to deprive an owner of his property (and especially in the case of land, where the consequences of deprivation are very high), just because he has allowed his property to be used by someone else .This has also thought evenDockray "Why should it protect a wrongdoer -a person whose conduct might be tantamount to theft -but whom the law may nevertheless aid even against an innocent owner, that is, a person who did not know and could not have discoveredthat time had begun to run? " 6   Pavarsisht kritikave ky ende mbetet nje nga justifikimet me te vlefshme edhe sot per parashkrimin fitues, sidomos ne rastin e posedimit me mirebesim. 1AOL,1977,page 10. 2 Singer,1988, page 611 3 Oliver Wendell Holmes, The Path of Law, 10 HARV.L. REV.457, 476 (1897). 4Martin,2008,page 2 5 Interest in this respect represents a decision of the Court of South Africa, where the Court stated that "In a modern society, where unimproved property is frequently held for long periods by owners who live far away, and sometimes even abroad, the social desirability of [acquisitive prescription] may be questioned."62(Morkels Transport (Pty) Ltd v Melrose Foods (Pty) Ltd and Another."(Marais, 2011) 6 Marais,2011,page 163 Despite the criticism this still remains one of the most valuable excuses today for AP, especially in the case of possession in good faith.

Legal security
First, Legal security is related to the evidences in a judicial process.Merrill calls this excuse"the problem of lost evidence" The more time passes the more increases the possibility of loss or destruction of evidence to prove the allegations in the judicial process.AP facilitates the process of proof of ownership in the trial.Being an original way of earring the ownership, is enough the proof that the one who hold the land has won it with AP, and there is no need to be done the so called "probation diabolica. 1  Secondly, the buyer of a property, which bought the land from a person who has acquired it by AP, has the maximum security that after buying the item, no person will press charges , claiming he has won the item with AP. (Bouckaert & Depoorter,1999).So the application of AP increases legal security to buyers during the sales transaction.But also the opposite interpretation is valid, and AP can be seen as an institution, the existence of which diminishes the legal security in signing a sale transaction.
The buyer is at risk after the purchase of the property, since a third person can pretend to have acquired ownership over the property with AP.In fact, the security of property rights is considered by some authors as "public good" (Rose,1988;Clarke,2005). AP can give security for several parties at the same time,first to protect the public interest 2 .Secondly it gives assurance to third parties that have entered into legal relations with the recipient at the time of possession.So the AP allows a de facto situation becomes a situation, "de jure", creating in society "legal certainty by preventing parties from unnecessarily litigating about ownership" 3 Facilitating the process of proof of ownership in a civil proceeding, AP directly affects the growth of legal security in society.The principle of legal certainty has been recognized as one of the main justifications of AP by one of the leading scholars in the beginning of the twentieth century, Ballantine stated that AP has no intention to penalize or punish:" 4   The principle of legal certainty brings positive effects for several different subjects, first in favor not only of holders (who after many years that owns the land actually create certainty that the property will not be deprived of possession), but also helps increase transactions transfer of ownership, where third parties have already assurances that the title of the owner is free from any claims of third parties.And in the end, the most important consequence is that AP is in favor of the whole society in general, as if there are security to property titles, not only the society will increase stability but also the foreign investment.(Investors have certainty in sustainability of titles (Williams,2009).
Third, AP also creates legal certainty by resolving disputes about ownership of land."The purpose of constituting prescription is to put an end to litigation." 5 But unlike what some authors believe that AP facilitates sales transactions, actually there are some thoughts that this institute can increase insecurity.Prospective buyers of a property cannot have assurances that there are no potential suitor who in the future could sue the owner with a lawsuit to gain ownership by AP.(Martin,2008Despite this disagreement, the creation of a state of legal security for the parties directly concerned but also for society as a whole is an undeniable consequence for this institute 1 This evidence is required in case of a rivendikim lawsuit.The one who pretends to be as owner, must prove how he acquired the ownership from a third party.After this, the previous owner, must prove how he acquired the ownership, and so on. 2Rose, 988 :" if no one knows whether he can safely use the land,or from whom he should buy it if it is already claimed,the land may end up being used by too many people or by none at all." 3 Marais,2011,page 154 4 Has not for its object to reward the diligent trespasser for his wrong nor yet to penalize the negligent and dormant owner for sleeping upon his rights; the great purpose is automatically to quiet all titles which are openly and consistently asserted, to provide proof of meritorious titles, and correct errors in conveyancing. 5Charles,1911,page 3

Connection created between property and possessors (reliance interest)
This justification is essentially a moral justification.As said from the famous judge Holmes "Man,like a tree in the cleft of a rock ,gradually shapes his roots to the surroundings,and when the roots have grown to a certain size, can't be displaced without cutting at his life."This is the justification that Merrill calls " "quieting title" and that Posner calls "maintaining the status quo".By quieting titles , AP increases the number of transactions and creates more security for owners.By clarifying the ownership titles, the number of transactions will be increased in ownership transfer against a person who appreciates more the land.So the potential buyer of a property, the owner of which has acquired ownership by AP, is safer since the land is owned by the owner and will not have a subsequent lawsuit which will rise by possessors who would claim to own the land.By creating certainty in the exercise of property titles, is increased the potential for developing them, because now the owner has the certainty that he will not lose the property in the future.
For some authors this excuse with the excuse of silence of the owner, are the only ones who still have value in the XX1 century (Stake, 2001) That's why some authors calls this excuse is the most important one for the institute of AP. "The basic premise must be that long, unchallenged possession of land should not be disturbed."(Panesar & Wood,2007).If the property will then be taken to the possessors after a long possession, we will have as a consequence the creation of a situation of legal uncertainty.In most cases, possessors are poor people and squatters who have no means to live, and the apartment where they may have set is the only property they have.
For some authors, this is one of the main justifications for the use of the institute of prescription in the case of intellectual property (Bagley & Clarkson,2003).Nay "reliance interest It is the main reason that in common law claim for restoration is prescribed (can not be established after the expiry of a given period).In civil law, mostly in France and in Albania the restoration lawsuit is not prescribed.So the main purpose of the AP is :" to grant legal certainty to the peaceful use of the asset that continues over time."(D'Isa,2013) Well AP aims to maintain a status quo condition, which is supported from"Theory of personhood", which justifies AP in the connection established between the possessors and property (Burns,2011;Foncell,2005; Rose,…).So through the property, the possessors achieves to obtain his "self-development".To say it brifly, adverse possession is "a wonderful example of reward to useful labor,at the expense of the sluggard." 1ut why is created this link between the possessors and the owner Merrill has analyzed four reasons why there is this link.First, the theory of personhood, holder creates a connection with the land, and begins to identify with this wealth.Secondly, the aim to preserve peace in society, sothe relationship between the possessors and the land is so big,if deprived from the property after so many years of possession severe conflicts will begin Third, Merril gives the case when the possessor has made investment in this land.If there would not be adverse theory, the possessor would have interest to buy the land (to becomeowner alsoof the investmentthat he has done).But his interest to buy the land is large, which would encourage the owner to increase the price of land.This shows that the possessors, in the absence of AP institute , will be in a discriminating position towards the owner.Fourth, AP protects third parties, who throughout the time of possession have entered into legal relations with the possessor, believing that he is the true owner of the property.So the human instinct and the connection created between the possessor and the owner (allowed by the silence of the owner) is the greatest justification for AP "The law can ask no better justification than the deepest instincts of man " 2This excuse is supported too by the theory of "Radins' personality theory".If for a long time there is not an accordance between the entity that exercises the right of ownership and the holder of the real property (ie if the owner has essentially an empty ownership) then this property can not be part of the market.This condition may occur in two situations, which are very widespread in Albania.Firstly, if theregistered owner has vanished and for many years a third person has taken care of the property.Secondly in the case when between the owner and the third person has been signed an agreement for the transfer of ownership which contains flaws that render it invalid (for example is designed verbally and is not registered in the records of the mortgage).
The first case justifies the acquisitive prescription without title.Such cases have been encountered in Albania after 1990, for some reasons.Firstly,when the wave of immigration led many landowners to emigrate abroad leaving their lands without being exploited for many years.Secondly,theprolongation of the process of restitution of property has left many lands without a legal owner registered in the Register of Immovable Properties.This fact has brought as a consequence the occupation of many lands and the inheritors of the properties confiscated before 1945, because there are not still recognised as the legal owners, are not able to sue for the recovery of properties in Court.Thirdly, in many areas of Albania there is not yet performed the update process of immovable properties. 1 This has meant that for over 20 years there have been signed verbalcontratcsfor the transfer of land ownership , or contractsin the form of a simple letter, but not asa notarial act. 2 .This means that the ownership of these lands is not legally deemed to have passed from the seller to the buyer.The buyersof these lands have owned them for years, but the increase in value of the land might pushed the property owners to seek cancellation of these contracts and to require from the holder the return and release of the property.Acquisitive prescription is an institute that in all the cases above protects the holder, who through not their faultare put in a situation that gravely damages their interests.
Although there are criticisms about the fact that this excuse does not apply in the case when state bodies are those that have possessed the object, again this is one of the justification which is more well-founded and is less contested in the literature.This is because it is connected with the core of the property right.The universal aim of the ownership rightis that all valuable objects should be owned by someone (Gardiner .. :) So leaving the property without being exploited is not the main reason that justifies acquisitive prescription.In fact the owner can leave the property unused, and he isn't deprived from the proeprty in this case.But the fact that the property has been owned by someone else, has made that one of the msot important powers of ownership,possession, passes to someone else.This fact, entails as a consequence that the state should legalizethe transition ofall the other powers of the ownership tothe holder.

Economic Justification
The economic justification of acquisitive prescription can be connected with some economic consequences that come from the application of this institute.a. Firstlythe "marginal usefulness of revenues".This constitutes what is called "status effect theory (Stake, 2001).So it becomes very importantthe effect and the consequences on the parties.So how is prescription perceived by the owner or the occupier, the profit or loss of the property after the expiry of the limitation period.
The possessor perceives the acquisition of propertyas a natural consequence on the conclusion of the period of limitation (its loss would be conceived as a decrease in his income) Whereas for the owner,toretain ownership after the expiration of the limitation period is perceived as a benefitand an increase in his fortune.(Bagley & Clarkson, 2003; Holmes ...; Ellickson, 1989; Gardiner, ...) So through prescription property exceeds to that subject of law for which the property has greater significance but who can not gain property through a voluntary transaction with the owner because he does not intend to sell it.b.The objects are not left without being exploited, but through the holder, they are used maximally during a period of time.This justification applies mainly if we are dealing with immovable objects.So the property is given to that user who is most productive and issues the maximum benefit from the items.(Bagley & Clarkson, 2003) This refers to Locke's theory of "Labor's theory", which argues that through the mixing of work with property, the property is obtained from the person who possesses it for a long time. 1 The positive side of labor theory is that it constitutes a sufficient basis and has great value for justification in the case of possession in good faith and in bad faith one, since in both cases we have a combination between the work of the holder and the property.Always acquisitive prescription promotes 'the use, maintenance and improvement of Natural Resources" 2 Acquisitive prescription encourages bothproperty owners to exploit their property and to takecare for it, but at the same time promotes the third persons to exploit abandoned lands if owners are not properly taking care for them.So acquisitive prescription, manages to create legal certainty and the maximum utilization of the property, promotes economic and social stability.Shortly, this is called the "incentive effect" (the theory that by Stake justifies prescription by the adverse effect that this institution has on the future behavior of the owner and other entities in society.) The main criticism of this theory is that firstly it does not ensure that the way the property has been used from the holder, was the best way which could have increased the prductivity of land.Secondly, it does not always mean that the fact that the owner hasn't been using the land, has led to lower productivity.Maybe sometimes the best thing to do is leaving the land without exploiting it.(Bouckaert & Depoorter, 1999) Some authors (Burns, 2011) suggest that the state must find other ways to increase the productivity of land and property in general and should not be based on ths institute.Secondly, this theory is sharply criticized by scholars, because it represented a solid basis to justify the prescription before the XX century.But this justification can not be still valuable in the XXI century, where the primary purpose of the society is not the encouraging of the exploitation of land use, but its usage in the most productive way possible (Stake, 2001) Thirdly, another critic of this justification is based on the fact that in civil law (including the Albanian Civil Code) as well as in the beginning of the application of this institute in the common law, the holder is not obliged definitely to invest on the property (especially on land ) to win its ownership with acquisitive prescription.It is sufficiently for him to act as the owner, to care for its maintenance and use it.In thse cases, back then, the exploitation could even lead to reductions in the market value of the real economy.
Fourthly, not always the actions of the holder lead to increased productivity.Some actions (like the paying of taxes or the removal cenuesve ownership), suffice to qualify the the fact that theunlawful possessor has been acting as the owner.But these actions do not result in increased productivity of the land.(Clarke, 2005) Fifthly, there are authors who think that this excuse applies only in some exceptional cases, when dealing with abandonedand unused land.But not in all thecases the application of this justification can be valid, especially in cases of natural resources .
In conclusion we can say that while the justification for the exploitation of the property may be still valid today for movable properties, for the land that excuse is not so much valuable.What in the literature is often known as the "Highest and best use " of land, today does not necessarily mean the planting and processing of land.In some cases, leaving the land bare, waiting to increase its value, may be the best option in today's market land (Martin, 2008) but also it's exploitation can bring irreversible consequences in nature.In this way today even the first justification, that prescription condemns the property owner is no more valid. 3.If there is created legal certainty, there are reduced the costs of research and transactions.The reduction of the costs of transactions for the transfer of ownership has been one of the main goals set forth explicitly in one of the laws that recognized for the first time the institute of limitation in medieval England.d.There are decreased the costs of proving in court Evidence can be lost over time and this not only undermines the legal security but increases the costs to prove in court the parties claims.So one of the benefits of acquisitive prescription is that it facilitates the proof of ownership in the trial and thus it increases the efficiency of the judicial process (Williams, 2009) But in recent years, the development of technology and computing has made it easier the storage and has reduced the storage costs of evidence.That is why this excuse has no more value with the development of information technology (Bouckaert & Depoorter, 1999).
Despite critics we think that lowering the costs of the judicial process and increasing the guarantee of evidence can be achieved by prescription, and this excuse still holds true today."The quality and quantity of evidentiary material deteriorates with time and the parties will have to bear greater litigation expenses to find, or corroborate, evidence.."1

Moral Justification
The moral justification of prescription is based in some way on its other justifications.This justification is based on the connection that is created between the owner and the holder (this relationship is established even if the two have never met and been introduced to one another) .Theowner'sconduct(his silence) has left the holder understand that they can continue to exercise their possession in the future.(Bagley & Clarkson, 2003) The most vulnerable part in this colludes is the possessor, who has understood through the owner's behaviour that has all the right to possesscontinuously the property without being violated by anyone, even by its own owner.Some researchers agree that prescription can not have a moral justification (Marais,2011) .But the lawcan not be always in conformity with the moral.Acquisitive prescription in fact is not an ethic institute.But thelaw aims to resolve conflicts and acquisitive prescription is aninstitute which performs at his best this aim.The theory of Utilitarianism constitutes a sufficient basis for finding a certain moral justification to prescription, which is intended to achieve the common good by any legal action and institute." It has been suggestedthat the policy is to reward those using the land in a way beneficial to the community " 2According to Bentham, the father of Utilitarianism theory, there is a link between recognition of the right of ownership in society, and security and happiness in general in a community.That is whyto achievewelfare and an efficient utilization of land it should be applied necessarily the institute of acquisitive prescription.The Utilitarianism theoryhas as its subsection"Law and economics" theory.The latter aims to achieve the greatest usefulness called "economic efficiency".Whereas the first theory maximizes the usefulness achieving the greatest happiness for the greatest number of people.Bboth these theories constitute a reasonable basis to justify the prescription.Milli one of the leading scholars of the theory of utilitarianism says:"Possession ought to be recognised as ownership if it has not been challenged within a "moderate number of years." 3 Through prescription there can be avoid the social conflicts,since holders will tend to reach up to the use of violence, to regain possession of an item which they have possessed for so many time.But the avoidance of social conflicts and achieving peace in society is not a sufficient justification in the case when the state is the illegitimate possessor.The achievement of the social peace is estimated by many authors as the scope of application of acquisitive prescription in public international law 1 So being applied in international law, prescription provides "the fundamental interests of the Stability of territorial Situations from the point of view of order and peace " 2The main criticism of moral justification is that there can be no ethic found in this theory because the "squatters" are comparedwith thieves.But there are some scholars (Gardiner ..) who thinkthat the squatters should be evaluated, for being part of the society who have managed to find their own solution to their problems, to which the state has provided for years no solution at all.
There comes a great contribution to the society from acquisitive prescription, because items left in limbo (for example the abandoned houses) are restored by the holder, which not only makes these houses part of the immovable property market, but also increases their value in the market, and contributes to the growth ofthe value of the neighboring houses, causing a very positive impact on the overall economy of a country (Heap,2010) Despite moral contradiction of this institute, we can say that its usefulness justifies the lack of ethics.To conclude,we can mention the fact that in several decisions of the US Supreme Court it is recognized that this doctrine has no logical and moral base, but is necessary in resolving the conflicts (Teo Yin, 2008)

6.Psychological justification
The psychological justification of acquisitive prescription is based on the theory of "loss aversion 'and "experimental psychology".(Bagley & Clarkson,2003;Stake,2001) This justification has to do with the personal connections that are created between the holder and the property(espcially with the land).The core of acquisitive prescription is the human instinct, and the man becomes extremely connected with an item that he has used for far too long.Thisidea was supported strongly from Holmes in his famous statement that the property after a long possession "takes root in your being". 3According to experimental psychology theory,"the doctrine places the loss on the person who will suffer it least-the person whose roots are less vitally embedded in the land."(Stake,2001) Loss-aversion theory says that because "the disutility of giving up an object is greater than the utility of acquiring it", then the difference between WTA (Willing to accept) sum and WTP (Willing to pay) is always positive.Psychological justification is correlated with what is called the "endowment effect", which Holmes hasrefered as the first reason justifying acquisitive prescription.His idea was backed by other scholars, especially Stake.This effect it has in it's essence the fact that"people demand more to give up an object than they would offer to acquire it". 4

7.The judicial process that is undertaken for the recognition of ownership, plays an important role to justify the doctrine of adverse possession:
a.In order for the property to be acquired by acquisitive prescription there must be sued an indictment or a counterclaim (the latter in the event that a judicial process ha been initiated earlier against the possessor) by the possessor of the property.The judicial process that takes place is a further guarantee that, the fact that you take the property by the owner and it is won by the possessor, is in compliance with the material and procedurial law.That is why the judicial process that isconducted and theenforcement of the procedural law is very important.A regular judicial process promotes a behavior in accordance with the law.(Martin,2008) b.The acquisitive prescription urges theowners to refer ,as soon as possible,to the claim for restorationor return ofpossession .(this is explained by the theory of the "incentive effect" of Stake).c.It is true that acquisitive prescription can not reduce the number of conflicts, but it can reduce the number of conflicts in connection with lawsuits seeking redress from the owners against illegal possessors.d.The material and prcedural law provides that the decision of the Court,which recognises the ownership by acquisitie prescription,has retroactive effect.So if a property is earned by acquisitive prescription, the acquisition of ownership has ab.initio effect, from the moment the possessor started to enjoy the object.This criterion facilitatesthe application of this institute to third parties, which may have undertaken transactions with the possessor, thinking that he is the true owner.(BI Report, 2006)

Transitional Problemscan arise if this institute is entirely eleminated.
It was Stake in his study of 2001 that has supported this excuse, saying that now this doctrine has become part of the system of law and can not be eliminated without bringing serious consequences in the whole system of law in general .In conclusion we can say that despite the fact that the above excuses were valid centuries ago and still are a reasonable basis for the institution of acquisitiveprescription, in the future there is little chance that they will still remain sufficient justifications. 1 Therefore, it is necessary to carry out studies in various countries to suggest the problems that have arisen over the years regarding the application of this institute in practice.

IV.The application of acquisitive prescription for other law institutes.
The more it is suggested that an institute of law can be applied in different branches of law,even being applied by analogy, the more based is the conclusion that this institute has a solid base in the system of law.
1.Some authors believe that acquisitive prescription should be applied in the case of intellectual property (Bagley & Clarkson,2003) 2.Other scholars suggest applying prescription for items of cultural heritage, passed from one state in another state.(Doyle,2009) 2 In this case, if the object is displayedopenly to the public for a period of time, acquisitive prescription increases the safety of the right of ownership, the cultural heritage is propagated and one of the main goals of acquisitive prescription is achieved,the encouragement of the effective and efficient exploitation of objects (Doyle, 2009) 3.There are some researchers who agree that there is adequate opportunity that acquisitive prescription can be applied in the field of public international law.(Lesaffer,2005). 3  But there are authors who believe that prescription should not be applied in other analogous situations (ie application of the law by analogy) as this may lead to uncertainty and disputes (Turley, 2013) .In any case, even whythe application of acquisitive prescription in other areas the law is limited, some few cases of it's application indicates the acceptance of the legitimacy of this institution by scholars of all branches of law as well as the existence of a reasonable basis in the essence of this doctrine.

VII.Acquisitive prescription costs.
Despite the continuous excuses for this institute, a summary of the costs of this doctrine will give us a clearer view of the true value that acquisitive prescription has for the society.
First, the cost of monitoring the property consistently(especially the monitoring of land).So even if the owner lives off his property, he should monitorhisproperty,finding any possessorthat may be exploiting the land illegally.(Bouckaert & Depoorter, 1999; Gardiner ...; Stake, 2001) Secondly, it isn'tprovidethe right of the owner to obtain compensation in the case of acquisitiveprescription. Oftentimes acquisitiveprescription is seen as too great a cost to the owner.The lack of compensation to the owner was the main reason that prompted Great Britain to claim before the ECtHR the inconsistency between the institute of prescription and Article 1 of Protocol No. 1 of the ECHR. 1 The only state that provides for compensation is Sweden, only if the owner whose property has been taken by force against his compliance, sues the state to receive compensation within a period of 10 years from the entry of the holder in control of the property. 2In Spain,as well, there is a right of the juvenile owner to sue his legal representative forcompensation if, due to his negligence, the property is acquired by a third person with prescription. 3  The lack of compensation is justified by the fact that the prescription has retroactive effect.The owner may not claim compensation on a property to which he was legally considered lost from the moment that the third person came into possession of the item.
Third, it promotes the destruction of natural resources.Although many authors claim that in fact acquisitive prescription promotes the utilization of natural resources (Burns, 2011;Clarke, 2005;Sprankling, 1994), in fact, especially by the scholars of the XXI century, it has been claimed that prescription in fact damages natural resources.The promotion of the degradation of natural resources, which are state property,constitutes one of the greatest risks of prescription.(Gardiner, ..) Although acquisirive prescription helps the exploitation of land, this consequence is contrary to the principles of ecologists for the preservation of ecological zones and the inviolability of cultural heritage areas .Hereupon acquisitive prescription has a negative aspect, because it can affect natural habitats.This can be averted if prescription isn't applied in undevelopped ecological areas or there is limited its application only in urban areas.(Williams, 2009) Fourth, similar to the above cost, is the case when the property (although itisn't a natural resource) has more value in the market if it remains unused "In some cases" the best use of land is no use at all " (Stake, 2001).But the Institute of acquisitive prescriptionpromotes the exploitation of land from the possessor, with the aim to obtain it through the passing of time.This is a great cost not only because the land is irreversibly transformed but it also encourages the occupation of land by illegal possessors to the detriment of the legal owner.Some scholars call itas an incentive to theft (Stake, 2001) Fifthly, there are costs for the accomplishment of the judicial process whereby ownership will be recognized to the holder becuause he has earned it by acquisitive prescription.Acquisitive prescription is determined through a declaratory judgement of the Court, which has retroactive effect.That is why ais a consolidated judicial system is a necessity.But it should be noted that the system of law in Albania hasa lot of problems.That is why one of the main risks of the application of this institute in Albania,and also in all the countries with a unconsolidated judicial system, is the risk of announcement of a court decision that could affect the essence of the right of property through unfair procedures.Sixthly,prescription reduces the usefulness because it discourages the owners to let third persons possess their property. 1But despite the costs, prescription promotes legal security in society,transforming into de jure situations, the de facto situations that have persisted for a long time.This result is more than an enough criterion to concludethe usefulness of prescription, regardless of its costs.VIII.The application of compensation in the case of acquisitive prescription.
It seems as if the lack of compensation is contrary to a basic principle of law that states that:the right of any one begins where the other's right ends.As a scholar accentuated "No one has the right to use land in such a way as to injure that of another." 2 But why until now the institute of limitation has not provided the recognition of a right to compensation?In the majority of cases, the illegal possessors without title are people who have occupied land from someone else because they didn't have the means to live .The recognition of the right to compensation would be completely inappropriate in this case.This is one of the most frequently cases encountered in Albania after 1990-s where many owners abandoned their lands and emigrated abroad, while squatters occupied them and builded houses where they could live.Secondly, if the right to compensation was entitled, it could contradict the very essence of this theory, which means that through acquisitive prescription the person becomes the owner from the moment that he started to possess it.So how can he be obliged to pay for something, the owner of which he has been from the beginning of the possession.
In general, the researchers suggest that compensation can not be applied because of the fundamental differences that exist between prescription and expropriation.These difference relates to the first justification of prescription, the neglectful demeanor of the owner.The negligent behavior of the owner ,who doesn't take care for his property,shows that he is not interested to it.That is why the taking of his property will not have a huge impact on his interests.Contrary to this, in the case of expropriation, the taking of the property has serious consequences for the owner because he was constantly using it.Also, according to the researchers, the application of compensation as a basic principle in the case of acquisitive prescription should not be accepted as this would conflict with the very essence of this institute."Indemnificationwould require an inquiry into the value necessary to fairly compensate all parties who have an interest in the property, interfering with the lost evidence and quieting title rationales." 3 This is because there will not be compensated only the owner, but all the parties whose interests have been damaged during the possession period.(For example third parties that may have signed oral or written contracts with the legitimate owner of the property, contracts that have been valid duringthe time of the possession ) .We also saw prescriptionas an institute that "punishes" sleepingowners for their inaction.But if the right to reimbursementwas acknowledgedthe institute of prescription does not punish these owners, but instead it rewards them for their negligence.This would conflict with the "sleeping theory".But there are scholars who agree that a careful owner would not be inhibited by the conservation ofhis property, even ifhe was entitled with the right to compensation.it is also argued by some scholars (Foncello , 2005) that the recognition of the right to compensation could affect third parties who have entered into interaction with possessor.They will depend on the willingness of the holder, whio if wasn't willing or wasn't able to pay the amount of compensation would violate the interests of those third parties too.
The lack of compensation was even the reason why England claimed before the European Court of Human Rights that the acquisitiveprescription is contrary to the European Convention on Humna Rights.But the European Court concluded that prescription represents an institution in the public interest"finding that while the English law of adverse possession impacted the company, the original land owner, the company was not "deprived" within the meaning of Article 1.Additionally, the Court concluded that the law properly struck a balance between public interest and individual rights." 4  But despite the above causes are there any situations in which there can be recognized a certain amount of compensation to the party injured from the application of the institute of prescription.Some of these cases are mentioned briefly below.First, compensation may be provided in the case when the state institutions are the holder of private property (Merrill,; Foncello, 2005; Dick, 2007) In the case where the State is the unlawful possessor of the land, the justification of 'Reliance interest "isnot worth much in this case.There can not be perceived that there has been created a link between the personality of the state bodies and the private property possessed.The taking of the property in this case, which passes on the property of the state organs, may be considered as a taking of land " to the public interest ".In the period of Colonial America, the state had the right to gain land ownership, without the obligation to pay compensation, starting from the principle that a citizen loses the right of ownership in favor of the state on the basis of the principle of "the general right of the whole society".(Dick, 2007) We argue that if the right of compensation wasn't acknowledgedin the cases where the state is the illegal possessor, it would conflict with the purpose that the state.He has has to protect it and not to infringe this right.Secondly, there are authors who think that prescription in bad faith should be canceled entirely.There must be recognised only the right of the possessor to be compensated for theinvestments he has made on the land, which the owner conscientously has left to be performed.Third, it must be recognized the compensation for theinvestments the holder has committed, in case the holder it fails to benefit the right of ownership, at the end of the lawsuit.So regarding the investments that he has performed on the land, which have added value to it, the holder, even if he does not meet the criteria for acquisition of property by prescription, has the right to request the return of these investments.But if he has made changes that have reduced the value of the object, we think that he should be forced to compensate the owner for the reduction of this amount.Fourthly, there are authors who believe that injustice is not related so much to the fact that there is no obligation to pay a compensation to the owner, but to the fact that even though the property is registered in the Filing Office of immovable property and the owner may have paid yearly the fees for the land, the state has taken no measures to protect and inform the owners for theillegal possessors. 1   Fifthly there must be applied compensation in the case of bad faith possession (and not not when the possessor is in good faith) as this possessor knows that he is violating the right of another person since the first day that has started to exploit someone else's property.In this case there can be applied the institution of "unjust enrichment" (Martin, 2008; Stake, 2001), as one of the parties s damaged contray to the principle of rule of law. 2 In this case the doctrine suggests that,in case to the owner is caused a serious and irreparable damage, there must be payed from the holder in bad faith the full value of the land and all the taxes that the owner may have paid during his possession.Regarding the amount of compensation, in the few cases that it is accepted, we must point out one important fact.This fact is that the holder becomes the owner from the date that he entered in the possession of the property.So the value of the compensation will be the value of the property at the moment the holder entered into possession of the item.As one scholar accentuated"the property owner may only suffer a confiscation of those interests that were part of his title to begin with." 3   In conclusion it should be said that despite that this doctrine contains many contradictions, it can not be eliminated completely.What must be done is the disappearance of "Perception of unfairness" (Martin,2008) and recognizing an opportunity for compensation depending on concrete cases against the most vulnerable party. 1 Law Reform Commission Hong-Kong,2012,page 26, ""The unfairness…lies not in the absence of compensation, although that is an important factor, but in the lack of safeguards against oversight or inadvertence on the part of the registered proprietor." 2 In a case in the Court of Colorado, Kirlin vs. McLean case, the holder did not win the property by prescription, although all the legal criteria were met.He had to pay the market value of the property to the owner and the tax property that the owner had payed for many years. 3Foncello,2005,page 694

IX.CONCLUSION
The debate whether acquisitive prescription is or not justified and useful will continue to exist for how long this institut shall be applied.But again it's usefulness can not be questioned An institute of law can never satisfy without exception all members of society.As Williams emphasized "There is no way any process, any criteria [or] any land law would please everyone." 1 Precisely for the reasons that serve to justify acquisitive prescription, the scholars likens it to expropriation without compensation, or"constructive expropriation. 2 It is indisputable that prescription, despite the contradictions will continue to exist as an institute, because to deprive a holder who has used the land for so long (with the tacit approval of the owner) will bring very serious consequences for him.
AcquisitivePrescription is an institution born out of necessity and the usefulness that he has brought to society,is undeniable.But at the same time the existence of this institution can affect the manner the society will behave in the future (some researchers suggest that it promotes theft of property in the future ).So, the law is a tool that reflects the behavior of the people in society but at the same time it shapes it.
Although the doctrine has many researchers who argue about the fact that will this institute be justified in the future (Stake, 2001), again we are confident that this institute will continue to exist for a long time, due to excuses mentioned above and the importance that the right of property ownership has in all countries in the world.An ownership right that remains idle for a long time not only has no value, but rather is harmful to the society.That is why the acquisition of the property right from the holder, who for many consecutive years has fulfilled all the obligations of the owner is the right solution the law provides.