Usucapion: what is it, types, requirements and regulation?

Acquisitive prescription or usucapion is a right that allows the acquisition of a property (generally real estate) after a certain period of time has passed in possession of it. Here we would like to explain this concept in depth, how it is regulated and what its consequences are.

Definition of usucaption

Acquisitive prescription in the Civil Code is regulated in Articles 1931 et seq. Specifically, it deals with the acquisition of ownership and rights in rem of a property by means of simple possession over a prolonged period of time.

A clear example of acquisition by usucaption is that of "squatting". A family enters, in principle, to reside illegally inside an uninhabited dwelling. However, for one reason or another, the landlord fails to act. After a certain period of time, these "squatters" may become the legal owners of the property. This is not common, but it can happen.

Acquisitive prescription, on the other hand, is also considered an original acquisition right since a third party does not interfere. It is based, on the one hand, on the principle of legal certainty (it rewards the one who exercised the ownership of the right even without possessing it) and on the neglect of the original owner (who neglected his responsibilities as owner).

What can be usucapted?

Generally, when we refer to this concept, we refer to the usucaption of real estate. However, article 1936 of the Civil Code establishes that any property that can be marketed is subject to acquisitive prescription.

For its part, the Civil Code also talks about those who can make an acquisition by usucaption. Specifically, it refers to all those subjects who would have been able to acquire the property through other legitimate means.

Ordinary and Extraordinary Usucapion in the Civil Code

The legal texts include two types of acquisitive prescription. We are talking, of course, about ordinary and extraordinary usucapion in the Civil Code. We are going to start by talking about everything related to ordinary usucapion, which is the most common.

Deadlines and requirements for usucapion in Spain

The law establishes a series of deadlines for carrying out the usucapion procedure. Everything will depend on the type of property we are talking about:

• Movable property. The minimum period during which the non-owner possessor must use the property is three years.
• Immovable property (usucaption of dwellings, business premises, farms, etc.). In this case, the period is longer. Specifically, usucaption in immovable property is set at 10 years.

However, in order to carry out the usucaption of dwellings or real estate, it is necessary to fulfil a series of requirements:

Possession

It is the main basis on which the definition of usucaption is based. In fact, the only thing that this procedure does is to give legal protection to a real situation that is taking place. In other words, it elevates the possessor to the title of owner.

This possession must be held in the capacity of owner. Therefore, spending a certain amount of time as a tenant does not give the right to acquire the property by acquisitive prescription. Moreover, it must be public, as the "society" must recognise the usucapient as such.

It is also obligatory that the possession is peaceful and has not been taken violently. The purpose of this is to exclude from the possible usucaption procedure those rights that have been claimed by third parties (e.g. heirs) or by the original owner.

Finally, possession must be exercised in an uninterrupted manner. That is to say, within the time limits and requirements for usucaption in Spain set by the Civil Code, it is established that any judicial or extrajudicial claim interrupts the aforementioned time limits.

Good faith

This is a tricky section, why? The Civil Code states that the usucapient must act in good faith, i.e. have the belief that he has received the thing from the owner. Proving this is often quite complex. This often pushes many people into the extraordinary process, which we will discuss later.

The just title

Another requirement that is abolished in the extraordinary procedure. In particular, just title refers to sufficient elements to consider that the right of possession or ownership of the property has been transferred. A contract may suffice even if it is voidable.

The time limit

Earlier we said that it was set at 3 years for movable assets and 10 years for real estate. However, there are nuances that should be clarified in order to know correctly how time is calculated.

For example, the usucapient is obliged to calculate the time that the person who caused the right was in possession of the property. Likewise, the Civil Code presumes that whoever possessed the property for a certain time and has it now has also spent all that time counting on it. This means that interruptions must be proven in order to be taken into account.

The extraordinary process of acquisitive prescription

The extraordinary procedure of acquisitive prescription is a formula by which the person requesting to acquire the right openly recognises that he is not the owner in any case. It therefore abolishes the requirements of good faith and fair title. But in exchange for what? In exchange for considerably lengthening the minimum periods of possession of the property.

In this case, the minimum period for acquiring ownership of a movable property by means of acquisitive prescription is 6 years. For usucaption of real estate, on the other hand, it is set at 30 years. In this procedure, it is sufficient to prove that one has possessed the property for this period of time without any other justification or fulfilment of the other requirements.

Some interesting conclusions

The characteristics of the prescriptive acquisition procedure are so peculiar that, at present, it is not developed very often. Neither in its ordinary nor in its extraordinary version. However, there was a time when it was much more common. Through it, many farms and rural properties were regularised and used by families without the existence of any document certifying it.

We hope we have resolved all your doubts and have helped you to understand this concept better. It only remains for us to remind you that, if someone has requested the acquisitive prescription of one of your properties or if you are the one who wants to do it, it is essential that you have specialised legal advice.