ADVERSE POSSESSION OR THE MEANS OF ACQUIRING PROPERTY THROUGH POSSESSION

POSSESSION AS OWNER AS A MEANS OF ACQUIRING PROPERTY

Although it may seem strange that, even today, there are cases of real property that remain outside a person’s control for many years, this is indeed the case, and there are many instances in which the transfer of title to a piece of real property has not been formalized, and when this happens, the occupant who believes they are the owner may wish to regularize their situation, which they can do provided they meet the requirements set forth in the Civil Code—and, of course, provided they have a title, because otherwise we would not be discussing the same matter.

When referring to adverse possession, it always applies to both personal property and real property, and the acquisition always pertains to ownership and real rights.

REASON FOR RECOGNIZING THIS RIGHT

We believe that the rationale behind this legal concept rests on several factors, the main one being the need for legal certainty and ensuring that the path to regularizing property rights is not closed off to individuals who can prove they are entitled to them.

As our Supreme Court has established, the basis for acquisitive prescription is objective in nature and consists of providing legal certainty to rights so that, once the period established by law for the exercise of the right has elapsed and the other required conditions have been met, that right is established and protected against all others, thereby avoiding the evidentiary difficulties that might arise in justifying the origin of property rights acquired in the distant past.

ACQUISITIVE PRESCRIPTION WHEN THERE IS A VALID TITLE

Adverse possession is governed by the Civil Code, specifically in Articles 609 and 1936 et seq., among others. We will not reproduce these provisions here, but we will outline the essential requirements necessary to qualify for this form of original acquisition, since it is not a transfer of title but rather an original acquisition.

Ordinary adverse possession:

It requires the elements of good faith and just cause (according to the Article 1940 of the Civil Code):

Accurate title:

The Civil Code defines "just title" in the Article 1952 of the Civil Code: «A valid title is defined as one that is legally sufficient to transfer the ownership or real right to which the statute of limitations applies.». The title acquired by adverse possession must also be genuine and valid (Article 1953 of the Civil Code).

Good faith:

The Article 1950 of the Civil Code provides that: «The possessor's good faith consists in the belief that the person from whom he received the thing was the owner of it and could transfer ownership,», which is consistent with the provisions of the Article 433 of the Civil Code, according to which a person is deemed to be in good faith if they are unaware that their title or method of acquisition contains a defect that invalidates it, and, conversely, a person is deemed to be in bad faith if the opposite is true.

The period for ordinary adverse possession of personal property is 3 years (Article 1955 of the Civil Code, paragraph 1) and real property claims are subject to a 10-year statute of limitations, unless the injured party resides in a foreign country or overseas, in which case the statute of limitations is 20 years, according to the Article 1957 of the Civil Code.

We must bear in mind that, in general, real property is registered in the Property Registry, which presumes that the registered holder is the owner. Therefore, the requirement to possess the property as the owner must be adequately substantiated.

To fully understand this type of prescription, it is essential to emphasize that the possessor must act as the owner. This can only be proven by means of a title, which need not be the same one required for registration in the Property Registry. If that were the case, we would not be dealing with this type of prescription.

A practical example:

This law firm in Alicante is currently handling a case involving ordinary acquisitive prescription. We base our argument on the existence of a document of valid title—in this case, the grant of a power of attorney. The deceased owner granted this power of attorney to our client, conferring broad rights over the property, including the right to enter into contracts on her own behalf.

Furthermore, our client has demonstrated that, over the past 40 years (although 20 would have been sufficient), she has paid all expenses related to the home and has owned it from the very beginning. This has been confirmed by numerous witnesses, including neighbors.

Finally, it is important to note that the registered owner died as a widow and without heirs. For this reason, a lawsuit was filed against the deceased’s estate.

EXTRAORDINARY ACQUISITIVE PRESCRIPTION

Article 1,959 of the Civil Code provides, with respect to real property, that ownership may be acquired in the absence of a title; however, unlike ordinary prescription, possession must last for 30 years, and in the case of personal property, 6 years; and, of course, as the owner. In this case, neither good faith nor a valid title is required.

As with ordinary prescription, possession must be public, peaceful, and uninterrupted.

It is important not to confuse this with the recognition of a right on the part of someone who occupies a property and seeks to acquire it solely through the passage of time. Under our law, mere possession of a property is not recognized as grounds for acquiring ownership. This is particularly relevant in the case of real property, since it is rare to find properties that are not registered in the Property Registry. The Property Registry would not allow anyone to claim ownership based solely on possession.

In the case of acquisitive prescription—especially extraordinary acquisitive prescription—it is considered to have been completed when certain requirements are met. It is essential that possession be exercised as an owner, publicly and peacefully. This concept of «possession as an owner» is not merely subjective or intentional. It is not enough to simply wish to possess the thing for oneself.

An objective element is also required, which consists of performing unambiguous acts that are clearly visible to the public. These acts must be ones that only an owner can perform. It is necessary to act and present oneself as the actual owner of the property, demonstrating this possession through acts that only a legitimate owner could perform.

LEGAL ACTION TO RECOGNIZE SAID RIGHT

Acquisition by adverse possession can only be recognized through a court ruling that, once it becomes final, is recorded in the Land Registry.

The appropriate procedure is an ordinary trial, as provided for in the rules of civil procedure.

A lawsuit must be filed against the registered owner against whom the action is brought, or against the estate if the owner has died and there are no heirs or the heirs are unknown.

The complaint must be accompanied by as much documentation and witness testimony as possible to demonstrate that the legal requirements have been met, depending on whether the statute of limitations is ordinary or extraordinary.