Acquisitive prescription (取得時効 - shutoku jikō), a concept under the Japanese Civil Code (民法 - Minpō), allows a person to acquire ownership of property belonging to another by possessing it openly, peacefully, and with the intent to own for a statutorily defined period. When this principle is applied to a Japanese condominium unit that has integrated site-use rights (敷地権付き区分建物 - shikiken-tsuki kubun tatemono), questions arise regarding the fate of these inseparable site rights (shikiken). Does the prescription of the unit automatically entail prescription of the shikiken? And how is such an acquisition reflected in Japan's meticulous real property registration system?

This article will explore how Japanese law addresses the acquisitive prescription of shikiken-tsuki condominium units, the relationship with the principle of inseparability, and the subsequent registration procedures.

Understanding Acquisitive Prescription in Japan (Civil Code Arts. 162 & 163)

Before examining the condominium context, it's essential to understand the basics of acquisitive prescription in Japan:

1. Key Elements of Acquisitive Prescription (Civil Code Art. 162):
   For a person to acquire ownership of a thing (including real property) through acquisitive prescription, the following conditions must generally be met:
   • Possession (占有 - sen'yū): The person must be in factual possession of the property.
   • Intent to Own (所有の意思 - shoyū no ishi): The possession must be with the intention of owning the property, not, for example, as a lessee or bailee.
   • Peaceful and Open Possession (平穏かつ公然の占有 - heion katsu kōzen no sen'yū): The possession must not have been obtained by force or deceit, and it must be manifest and observable by others.
   • Statutory Duration:
     • 20 Years: If the possessor started possessing the property without necessarily being in good faith or free from negligence regarding their right to possess.
     • 10 Years: If the possessor, at the commencement of possession, was in good faith (善意 - zen'i) (i.e., believed they had the right to possess) and without negligence (無過失 - mukashitsu) in holding that belief.
2. Acquisitive Prescription of Accessory Rights (Civil Code Art. 163):
   Article 163 of the Civil Code states: "Ownership of a thing that is accessory to a principal thing is also acquired by prescription when the principal thing is acquired by prescription." This principle is crucial for understanding how shikiken are treated.

Acquisitive Prescription and the Principle of Inseparability

A defining feature of shikiken-tsuki condominiums is the principle of inseparability (一体性の原則 - ittaisei no gensoku), primarily established by Article 22 of the Act on Unit Ownership of Buildings (区分所有法 - Condominium Ownership Act, or COA). This article generally prohibits the "disposition" (処分 - shobun) of an exclusive-use unit separately from its site-use right (shikichi riyōken), and vice-versa, unless the condominium bylaws provide otherwise.

Is Acquisitive Prescription a "Disposition" Restricted by COA Art. 22?
The term "disposition" in COA Art. 22 typically refers to volitional legal acts such as sale, gift, or the creation of a mortgage. Acquisitive prescription, however, is an original mode of acquiring ownership (原始取得 - genshi shutoku). It arises by operation of law based on a continued factual state of possession meeting statutory requirements, not from a transactional act between parties.

Therefore, legal interpretation generally holds that the acquisition of ownership through prescription is not a "disposition" in the sense contemplated and restricted by COA Article 22. The prohibitions on separate disposition are primarily aimed at preventing the contractual or volitional severing of the unit-land bond by the owner. Acquisitive prescription operates on a different legal plane.

The General Rule: Simultaneous Acquisitive Prescription of the Unit and its Shikiken

Given that acquisitive prescription itself doesn't inherently violate the "no separate disposition" rule, the next question is whether prescribing the unit automatically includes the shikiken. The prevailing view, supported by the logic of Civil Code Art. 163, is that it generally does:

1. Possession of the Unit Implies Exercise of Shikiken:
   When an individual possesses a shikiken-tsuki condominium unit under the conditions necessary for acquisitive prescription (intent to own, peaceful, open, for the statutory period), their factual control and use of the unit invariably involve the simultaneous exercise and enjoyment of the rights associated with its integrated shikiken. Living in, maintaining, or otherwise controlling a unit necessarily means utilizing the underlying land rights that permit the building's existence and the unit's enjoyment (e.g., access, support, share in common land areas). It is practically impossible to possess a condominium unit as if it were one's own without also, by implication, possessing and exercising the appurtenant site-use rights.
2. Application of Civil Code Article 163 (Prescription of Accessory/Integrated Rights):
   The shikiken, by its very legal definition and function, is inextricably linked to, and integrated with, the exclusive-use unit. While not merely "accessory" in a subordinate sense, its existence is tied to the unit. Therefore, when the conditions for acquiring ownership of the unit (the principal property interest in this context) by prescription are fulfilled, the associated shikiken is generally considered to be acquired by prescription simultaneously by virtue of Civil Code Art. 163. The law presumes that the qualifying possession extended to the entire integrated property interest.
3. Acquisition of the Integrated Property Interest:
   Thus, the successful claimant acquires the shikiken-tsuki kubun tatemono not as two separate pieces but as a single, unified, and integrated property interest through prescription.

Registration of Ownership Transfer by Acquisitive Prescription

Once the conditions for acquisitive prescription are met and the claimant wishes to perfect their title in the public register, they must apply for an ownership registration.

1. Type of Registration: Even though acquisitive prescription is an original mode of acquisition, the registration procedure to reflect this is an "Ownership Transfer Registration" (所有権移転登記 - shoyūken iten tōki). The registration effectively transfers the title from the last registered owner to the person who has acquired it by prescription.
2. Cause of Registration (登記原因 - Tōki Gen'in): The registered cause will be "Acquisitive Prescription" (時効取得 - jikō shutoku).
3. Date of Cause (その日付 - Sono Hizuke): The date recorded is typically the date on which the statutory period for prescription was completed. In some cases, if the right is asserted later, the date of assertion might be relevant, but completion of the period is the key.
4. Application for the Unit, Including Shikiken Display:
   The application for ownership transfer is filed for the condominium unit. Crucially, because it is a shikiken-tsuki unit, the application must include the "display of site rights" (敷地権の表示 - shikiken no hyōji), detailing the type, location, and proportion of the shikiken that has been co-acquired.
5. Automatic Legal Effect on Shikiken (RPRA Art. 73(1)):
   As with other rights registrations for shikiken-tsuki units, when the ownership transfer due to acquisitive prescription is recorded in the Kō-ku (ownership section) of the condominium unit's registration record, this registration automatically extends its legal effect to the integrated shikiken. The claimant is thereby formally registered as the new holder of both the unit and its appurtenant shikiken. No separate registration application or entry is made in the land records specifically for the transfer of the shikiken component; the unit's registration suffices to perfect the change for the entire integrated interest.
6. Proof Required for Registration (登記原因証明情報 - Tōki Gen'in Shōmei Jōhō):
   To effect this registration, the claimant must provide "Information Certifying the Cause of Registration." This can take several forms:
   • Agreement with the Current Registered Owner: If the current registered owner acknowledges the claimant's successful acquisitive prescription, a formal agreement between them confirming the jikō shutoku can serve as the cause information. This would typically be a joint application.
   • Final and Binding Court Judgment: More commonly, if the current registered owner disputes the claim, the person asserting prescription will need to file a lawsuit and obtain a final and binding court judgment (確定判決 - kakutei hanketsu) that confirms their acquisition of ownership by prescription. This judgment then becomes the primary document certifying the cause of registration, and the claimant can usually apply for the registration solely based on this judgment.

Rare Scenarios: Possibility of Separate Acquisitive Prescription of a Shikiken Component?

While the general rule is the simultaneous prescription of the integrated unit and shikiken, legal commentaries acknowledge the theoretical, albeit rare, possibility of a component of the shikiken (particularly a distinct portion of land like a non-adjacent bylaw-defined site - 規約敷地 kiyaku shikichi) being acquired by prescription separately. This could occur if the factual conditions of possession (open, peaceful, intent to own, for the statutory period) were met only for that specific part of the land and not necessarily for the unit itself, or if the unit was possessed by one party and a separable part of the shikiken by another under different circumstances.

Registration Consequences in Such Rare Cases:
If such a separate prescription of a shikiken component were legally established:

• It would mean that the original integrated shikiken of the affected condominium unit(s) has been altered or partially lost.
• The registration process would be more complex, likely requiring:
  • A building display modification registration (建物の表題部の変更登記 - tatemono no hyōdaibu no henkō tōki) for the relevant condominium unit(s) to amend or delete the affected part of their shikiken display in the building register.
  • A separate land registration (e.g., ownership transfer by acquisitive prescription) made directly in the land records to reflect the new ownership or rights status of that specific land portion. This registration would then need to reconcile with the shikiken status (or lack thereof) of the remaining land.

These situations deviate significantly from the standard, integrated acquisitive prescription of a shikiken-tsuki unit and would involve intricate adjustments to both building and land registry records to ensure accuracy.

Conclusion

In the Japanese legal system, the acquisitive prescription of a condominium unit with integrated site-use rights (shikiken-tsuki kubun tatemono) generally leads to the simultaneous acquisitive prescription of its inseparable shikiken. This is primarily due to the nature of possessing a condominium unit, which inherently involves exercising the associated land use rights, and the application of Civil Code Article 163 concerning the prescription of accessory or integrated rights.

Importantly, the act of acquiring property through prescription is not considered a "disposition" in the sense that would be restricted by the Condominium Ownership Act's rules against separating units from their shikiken. The registration of this acquired ownership is processed as an "Ownership Transfer Registration" for the unit, with "Acquisitive Prescription" as the stated cause. This registration, which must include the display of the shikiken, automatically perfects the claimant's rights to both the unit and its integrated shikiken by virtue of the Real Property Registration Act. While theoretical possibilities for separate prescription of land components exist, they are rare and would trigger more complex registration rectifications. The standard pathway ensures that the strong legal integration of unit and shikiken is maintained even when ownership changes hands through the long-term operation of law that is acquisitive prescription.