Prescription of Actions and Usucaption of Immovable Property
Through usucaption or acquisitive prescription, ownership of real estate or other property is acquired through continued use for the period of time and under the conditions established by law.
For the acquisition to take place, the following is required:
Continued Possession
Public Possession
Ordinary Usucapion. Just Title. Good Faith. 20 years absent and 10 years between present
Extraordinary Usucapion. 30 years
Capacity
Loss of entitlement due to lapse of time and acquisition of ownership
The civil lawyers at G. Elías y Muñoz Abogados, with professional offices in Madrid, Majadahonda and Pozuelo de Alarcón, are specialists in resolving any problem that may arise in relation to claims for breach of contract or non-contractual negligence.
There are two forms of prescription provided for in the Civil Code, both of which are recognised by article 1.930 and following articles of the aforementioned body of law, according to which "by prescription, ownership and other rights in rem are acquired in the manner and under the conditions determined by law.
Rights and actions, of whatever kind, are also extinguished in the same way by prescription".
Thus, we see how the Civil Code provides that ownership of a property can be acquired by prescription, with the indispensable requirement established in Article 1.940 and following articles of the Civil Code, that is, that the property whose ownership is to be acquired by prescription is possessed in good faith, in a peaceful manner and as owner, and that this possession must be for different periods, depending on the legitimising title.
Secondly, and in order to provide a certain legal certainty to the set of social relations that exist between natural and legal persons, the Civil Code provides for the prescription of actions against third parties, which are provided for in Articles 1.961 and following of the Civil Code.
Effects
Usucaption produces the acquisition of the thing or right when the necessary requirements are met.
According to common doctrine, it operates retroactively, from the day on which possession began, which has as a consequence that the acts of exercise carried out by the usucapient during the intervening time are considered legitimate and that he makes all the fruits received during the time of possession his own, even if he was in bad faith.
Land Registry
Two different rules are established to regulate the relationship between usucaption and the Land Registry, depending on whether the usucapient is a registered owner or not:
Usucaption in favour of the registered holder
As registration is not generally constitutive in our law, it may happen that the registered holder of a right in rem is not the true holder. In this case, usucaption of the right in rem in favour of the registered holder (secundum tabulas) is allowed and favoured.
For the purposes of acquisitive prescription in favour of the registered holder, the registration is just title and it is presumed that the possession has been public, peaceful, uninterrupted and in good faith during the whole period of validity of the entry and of those of his predecessors from whom it derives.
Usucaption against the registered holder
A conflict may arise between the acquirer on the register
and the possessor who has usucapted contrary to what has been published by the Registry (contra tabulas).
In these cases, it is established that the registered owner who has the status of third party mortgagee - a bona fide acquirer, for valuable consideration, who is the cause of a registered owner and who is registered in the Land Registry - prevails over the usucapient, unless the usucaption is consummated or may be consummated within the year following the acquisition, and any of the following conditions are met:
- It is proved that the acquirer knew or had rational means and sufficient grounds to know, before perfecting his acquisition, that the property or right was possessed in fact and as owner by a person other than the transferor. Good faith is therefore not sufficient, but a duty of care is imposed on the acquirer.
- The de facto possession of the usucapient is expressly or tacitly consented to during the whole year following the acquisition.
The usucaption that has begun is also prejudicial to the registered owner if he does not interrupt it in the manner and within the time limit indicated, and without prejudice to the fact that he may also interrupt it before it is fully consummated.
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