Acquiring Real Estate Through Prescription (Adverse Possession) in Japan: Can You Gain Title and Registration?

Japanese Attorney at Law - Bengoshi L.L.

28 May 2025 • 8 min read

The idea that someone can acquire legal ownership of real property through long-term possession, even if they didn't initially have formal title, is a concept found in many legal systems, often known in common law jurisdictions as "adverse possession." Japanese law also recognizes this principle, termed "acquisitive prescription" (shutoku jikō - 取得時効). This doctrine allows a person who has possessed property for a specified period under certain conditions to gain full ownership rights and subsequently demand that the property's registration be transferred to their name. This article explores the key requirements and procedures for acquiring real estate through prescription in Japan.

What is Acquisitive Prescription (Shutoku Jikō) in Japan?

Acquisitive prescription, as defined in Article 162 of the Japanese Civil Code, is a mechanism by which ownership of property (both movable and immovable) can be acquired by possessing it continuously for a certain period under specific conditions. The underlying purposes of this doctrine include:

Respecting Long-Standing Factual States: The law recognizes that a state of affairs that has continued undisputed for a long time should, at some point, be given legal effect.
Alleviating Difficulties in Proving Title: Over very long periods, proving an unbroken chain of title can become exceedingly difficult. Prescription can provide a basis for ownership where historical records are obscure.
Promoting Active Use of Property: It can incentivize the productive use of property by those who are in actual possession and treating it as their own.

Types of Acquisitive Prescription for Real Estate

Japanese law provides for two main periods for acquiring real estate by prescription:

Short-Term Acquisitive Prescription (Tanki Shutoku Jikō - 短期取得時効) - 10 Years:
Governed by Article 162, Paragraph 2 of the Civil Code. This shorter period applies if the possessor, at the commencement of their possession, was acting in good faith (zen'i - 善意) and without negligence (mukashitsu - 無過失) in believing they had the right to the property.
Long-Term Acquisitive Prescription (Chōki Shutoku Jikō - 長期取得時効) - 20 Years:
Governed by Article 162, Paragraph 1 of the Civil Code. This longer period applies if the possessor meets the other conditions (like intention to own and continuous possession) but does not meet the requirements of initial good faith and absence of negligence, or cannot prove them.

This article will primarily focus on the requirements for short-term (10-year) acquisitive prescription, as it often involves more detailed factual inquiries regarding the possessor's state of mind at the outset.

Key Factual Allegations (Yokenjijitsu) for Short-Term (10-Year) Acquisitive Prescription

A person (plaintiff) claiming ownership of real estate through short-term acquisitive prescription and seeking a court order for the registration of ownership transfer must allege and, if disputed, prove several key Yokenjijitsu:

Possession with the Intention to Own (Shoyū no Ishi o motta Sen'yū - 所有の意思をもった占有):
- The claimant must have possessed the property with the mindset of an owner, i.e., intending to hold it for themselves as their own. This is often referred to as "autonomous possession" (jishu sen'yū - 自主占有).
- This is distinguished from "derivative possession" (tashu sen'yū - 他主占有), where possession is held on behalf of another or based on a limited right (e.g., as a tenant under a lease, a bailee, or a land manager). Such derivative possession does not fulfill the "intention to own" requirement.
- Presumption under Article 186, Paragraph 1 of the Civil Code: This article provides several important presumptions about the nature of possession. It states: "A possessor is presumed to possess with the intention to own, in good faith, peacefully, and openly." Thus, the claimant does not initially need to specifically prove their "intention to own"; it is presumed. The burden shifts to the opposing party (e.g., the original registered owner) to rebut this presumption by proving the possession was derivative.
Peaceful and Open Possession (Heion katsu Kōzen to shita Sen'yū - 平穏かつ公然とした占有):
- "Peaceful possession" means that the possession was not acquired or maintained through violence, force, or threats.
- "Open possession" means that the possession was not concealed or clandestine but was exercised in a manner apparent to others in the community or to the true owner, had they been diligent.
- Like the intention to own, these characteristics of possession (peaceful and open) are also presumed in favor of the possessor under Article 186, Paragraph 1.
Commencement and Continuous Possession for 10 Years:
- The claimant must prove that their (or their predecessor's) possession, meeting all other criteria, began at a certain point and continued uninterrupted for a full 10-year period.
- Presumption of Continued Possession (Article 186, Paragraph 2): This article states: "If possession is proved at two different points in time, it is presumed to have continued during the interval." This assists the claimant, who typically needs to prove possession at the start and at the end of the 10-year period (or at the time of litigation if it's ongoing).
- Succession of Possession (Article 187): A claimant can, under certain conditions, "tack" their period of possession onto that of their predecessors from whom they acquired possession (e.g., through purchase, inheritance). If they do so, they can also choose to inherit the character of the predecessor's possession (including any flaws, or its good faith nature). Alternatively, they can choose to assert only their own possession, in which case its character is judged independently.
Good Faith (Zen'i - 善意) at the Commencement of Possession:
- For the 10-year prescription, the claimant must have been in "good faith" at the moment their possession began. This means they genuinely believed they had a valid right to possess the property as owner (e.g., they believed they had purchased it validly, inherited it correctly, etc.), and were unaware of any defect in their supposed title.
- Good faith is also presumed under Article 186, Paragraph 1. The opposing party would need to prove the claimant was in bad faith (i.e., knew of the defect in their title or right to possess).
Absence of Negligence (Mukashitsu - 無過失) at the Commencement of Possession:
- This is a critical and often contested element for the 10-year prescription. The claimant must not only have been in good faith but also have been "without negligence" in holding that belief at the start of possession. This means they exercised the ordinary care expected under the circumstances in believing they had a right to the property.
- No General Presumption for Real Estate: Unlike the intention to own, peaceful/open possession, and good faith, the absence of negligence is generally not presumed under Article 186, Paragraph 1 for the acquisitive prescription of real estate. (While there has been some academic debate, and case law on a related concept of "presumption of good faith" in movable property immediate acquisition sometimes touches on absence of negligence, for Yokenjijitsu purposes in real estate prescription, the claimant typically needs to affirmatively address this).
- Therefore, the claimant must allege and prove specific "evaluation-basis facts" (hyōka konkyo jijitsu - 評価根拠事実) – concrete circumstances that demonstrate they were not negligent in believing they were the owner. Examples of such facts could include:
  - Details of the acquisition (e.g., purchasing from someone who appeared to be the legitimate owner, based on then-available documents or local reputation).
  - The state of the land register at the time, if it did not indicate obvious issues that should have alerted a prudent person.
  - The nature of the transaction and the information available to the claimant.
- The Supreme Court of Japan, in a judgment on December 24, 1968 (concerning a claim for cancellation of registration after alleged acquisitive prescription), discussed the interpretation of "good faith and without negligence," emphasizing that all concrete circumstances should be considered.

Invocation of Prescription (Jikō no En'yō - 時効の援用)

Even if all the factual requirements for either the 10-year or 20-year prescription period are met and the period has elapsed, ownership is not acquired automatically in a manner that can be asserted against the original owner or third parties in court.

Article 145 of the Civil Code: This article mandates that "Prescription must be invoked by a party." The party who stands to benefit from the completed prescription (i.e., the claimant possessor) must make a clear and unequivocal declaration of their intention to rely on the prescription to acquire ownership.
Method and Effect: This "invocation" can be made out of court (e.g., by a formal notice to the current registered owner) or, more commonly when litigation ensues, within the court pleadings themselves (e.g., as part of the plaintiff's claim for recognition of title and registration).
According to prevailing case law (e.g., Supreme Court judgment of March 17, 1986, concerning extinctive prescription but outlining the general nature of invocation), invocation is what perfects the legal effect of the completed prescription. For acquisitive prescription, this means the claimant definitively acquires ownership.

Claiming Registration After Prescription is Perfected

Original Acquisition: Acquisitive prescription is considered a form of "original acquisition" (genshi shutoku - 原始取得) of title. This means the claimant acquires ownership directly by operation of law once all conditions are met and prescription is invoked, not derivatively from the previous owner. The title is, in a sense, newly created in the hands of the acquirer.
Retroactive Effect: The effect of prescription retroacts to the time when the possession commenced (Article 144 of the Civil Code).
Demand for Registration Transfer: Once ownership is acquired through prescription, the new owner can demand that the person who was the registered owner of the property at the time the prescription period was completed undertake the necessary procedures to transfer the registration of ownership into the new owner's name.
The formal claim (seikyū no shushi - 請求の趣旨) in a lawsuit would typically be phrased as: "The defendant shall undertake the procedure for registration of ownership transfer concerning [detailed description of the property] to the plaintiff, based on acquisitive prescription completed on [date of completion of the prescription period]."

Complexities with Third Parties After Completion of Prescription (A Brief Note)

The legal situation can become particularly complex if, after the prescription period has been completed by the possessor but before the possessor has registered their newly acquired title, the original (now former, according to the possessor) registered owner sells the property to a third party who then registers their title. In such cases, a conflict arises between the unregistered owner by prescription and the registered new purchaser. Generally, if this third party registers their title without being a "bad faith abuser" (a specific legal concept for those who exploit the registration system unjustly), they may prevail over the person who acquired by prescription but failed to register. This highlights that even after acquiring title by prescription, prompt registration is crucial for protection against subsequent third-party claims. This area involves intricate case law balancing the effects of prescription and the principles of real estate registration.

Practical Challenges in Prescription Claims

Claims of acquisitive prescription are often fact-intensive and can present significant evidentiary challenges:

Proving Continuous Possession: Demonstrating uninterrupted possession for 10 or 20 years, along with the specific nature of that possession (e.g., extent of control, visible acts of ownership), can be difficult, especially if relying on historical events. Witness testimony, photographs, land surveys, tax payment records, and evidence of improvements made to the property can be relevant.
Demonstrating "Absence of Negligence": For the 10-year prescription, providing convincing "evaluation-basis facts" to show a lack of negligence at the commencement of possession is often the most challenging hurdle.

A Quick Comparison with Adverse Possession in Common Law Systems

While "acquisitive prescription" in Japan shares the core idea with "adverse possession" in common law jurisdictions – acquiring title through possession – there are differences in specific elements, statutory periods, the role and proof of "good faith" and "absence of negligence" for shorter periods, the effect of presumptions, and the explicit statutory requirement of "invocation" (en'yō) of prescription.

Conclusion

Acquisitive prescription provides a pathway in Japanese law for long-term possessors of real estate to gain formal legal ownership and secure registration. However, the statutory requirements are stringent and must be meticulously met. For the shorter 10-year period, proving initial good faith and, particularly, the absence of negligence in believing one had title, in addition to continuous, open, peaceful possession with intent to own, is essential. Furthermore, the crucial step of formally invoking the completed prescription cannot be overlooked. Given the factual complexities, evidentiary hurdles, and potential issues involving third parties and registration, pursuing or defending against a claim of acquisitive prescription invariably requires careful legal analysis and strategic preparation.