The purchase, the donation and the inheritance are the most common ways of acquiring a property. The people who become owners in this way have a valid title (public deed granted before a notary public) that makes them the legitimate owners of the property.

However, what happens when we occupy a property and we do not have a property title, nor have we leased it? Do we acquire any type of right over the property? For these cases, the Civil Code regulates the figure of usucapion. Usucaption is a way of acquiring rights to a thing by its continued possession for a time under the conditions provided by law, that is, by continued use, despite not being the owner, the property can be acquired (acquisitive prescription) . The goods that a person acquires by usucaption cancel the property title for the previous owner.

The foundation of this mode of acquisition is to generate security in the traffic of goods. The legislator rewards the person who has taken care of the property against the owner who has neglected it.
But this form of ownership requires two requirements: possession and time.

When speaking of possession, the legislator alludes to the need for it to be “as the owner.” With this, he leaves out the acts carried out under license, which are those carried out with the authorization of an insufficient title to acquire the property, such as a lease contract.
Acts of mere tolerance, protected by friendship and family relations or good neighborliness, are also excluded. For example, it would not be a suitable possession to usucair that of a son who lives in the apartment of his parents without paying the rent, because they allow it to do so.
Possession must be public and peaceful. The holder has to carry out acts that show his condition of “owner”. By eliminating secrecy, the legislator wants anyone to be able to witness the enjoyment that the owner makes of the property, so that the true owner can claim if he wishes.

The peaceful character of possession precludes the possibility that de facto power will be maintained by force. For the possession to be valid, there must be no claim from the true owner. It should be noted that the Civil Code establishes that the violent initiation of possession is purged after a year without reaction from the deprived. From then on, the possession becomes peaceful and the period for usucapir begins to count.

In addition, it must be an uninterrupted possession, which implies that neither possession nor any of the characteristics that it must have must have ceased in time during the period stipulated for usucapir.
In addition, it must be an uninterrupted possession, which implies that neither possession nor any of the requirements that it must meet must have ceased in time during the period stipulated for usucapir.
In relation to the latter, the legislator distinguishes between usucaption of movable property and usucaption of real estate, requiring 6 years of possession for the first and 30 years for the second.

These temporary requirements are relaxed if the holder is in good faith and has a fair title. The Civil Code refers here to the cases in which a person, unknowingly, receives the good of a subject not entitled to transmit it. For example, a person who does not own a home donates it to another. The donation is a fair title to acquire the property, however, it cannot be given by someone who does not own it. The purchaser of the home can only become the owner through the usucapion.
In these cases, the term is 3 years for movable property. In the case of real estate we have two terms, one of 10 years referring to the prescription between present, and another of 20 for which takes place between absentees. The concepts of absent and present will be applicable when the user or the one who suffers the prescription resides abroad.

Author: J. Escobedo

I am a member of the Tenerife Law Society since 1989 with a dedicated team for anyone who needs an immediate answer or long term solution to any practical or legal issues appertaining to any property or business investment in Spain. If you have decided to move to Spain to start a new life, whether that´s buying a property or a business, then you will definitely need the services of a good Spanish Lawyer who is fully conversant with Spanish protocol and who has a good command of the English language. I am based in the south of Tenerife and I am specialist in Property Law, Inheritance issues and taxes as well as Tenerife and Canarian law and a great deal more. ABOUT MY STAFF All my friendly and professional staff are fluent in English. We have been working for foreign clientes for over 30 years in Tenerife, providing legal advice and litigation services to all our clients investing throughout the whole of Spain and we pride ourselves on providing a high quality service to our clients in the form of clearer communication and advice.

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