Usucapion or Acquisitive Possession

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Usucapion or acquisitive possession in Spain is something very few people would know about.

What is Usucapion?

Usucapion means acquiring title to assets by the possession of them for a period of time. The time period needs to have been continuous and that they have been acquired in good faith. What would be an example? Personal possessions being left in a property by a husband who leaves the property for some years and never has them collected. They have not been stolen merely left as acquired possessions.

After a period of time the person with the possessions in the property acquires the same rights as the original owner. Another example would be if you lend your car to someone and they use it continuously for three years. Then they acquire the same legal right to it as you enjoyed. Normally this tends to happen because someone has left their moveable assets in a location and delayed moving them.

Can the person with usucapion sell or dispose of the assets after the time period?

Yes, they can. Only for real estate is a court judgement needed. A court judgment is also needed for vehicles, as the new ownership must be registered in Traffic department before they are able to sell.

What happens if a person with possession dies?

If the person who had the same right as the original owner dies before the term is completed what happens? Then, under the Civil Code, transferring the usucapion, the heir/s /estate may take advantage of the years of possession thus far. Then finish the number of years left in order to give them the right to dispose of the item.

What can be transferred or acquired under Usucapion?

Only rights that are related to possession of moveable or fixed assets can be transferred by usucapion, mainly ownership. Personal rights, even if it involves possession of goods (as in the case of leasing) cannot be acquired by usucapion. For example, a tenant renting an apartment for 15 years does not acquire the right to own or sell it. But examples would still be property, and objects such as clothes, valuables, a motorbike or a car. Not children!

What are the requirements of Usucapion?

Usucapion takes place as soon as the requirements set by law are met. The new owner does not have to do any paperwork etc to have the right to those assets (except for Real Estate and vehicles. The requirements are:-

• Possession – This is very important. They must physically have possession of the assets for the required period of time and be seen by others, for example, to be the owner.
• Good Faith – The new owner received the asset from the owner or from their heirs. There cannot have been a problem to invalidate the possession.
• Good Title -This confirms the good title is transferred by legal possession of the item through any type of business that is also legal and above board.
• Non-violence – The assets cannot have been acquired by a mugging for example or by a squatter entering a property. No force can be used.
• Continuous – The possession cannot have been interrupted by something such as a Court claim or an out of Court or private agreement that would suspend rights.
• Fixed Time – A very crucial point. The Civil Code establishes that for someone to acquire by possession or usucapion any moveable assets, the usual term is 3 years.

For real estate property, the time is 10 years (if the person with possession is present) and 20 years (if they live in another country). And that can include time that a property was in possession of a deceased person and someone inherited their rights of possession.

Extraordinary Usucapion

Ordinary usucapion is as above and there are two very important pre-requisites; that the possessor holds good title and acts in good faith.

The extraordinary one is different as it is 30 continuous years, however it does not require these pre-requisites.

We have had cases whereby for no fault of their own clients have not had ownership of the house they have lived in for many years. We are able, occasionally, to help, by proving to a Court continuous possession (as property transfer of ownership is always done through Court) We need to demonstrate that the clients have possession of the property paying electricity, water, IBI etc for more than 30 years. This is to prove to the Judge that they have the right now to title in their name through the Land Registry. It is not an easy case but at times possible.

Summary

Usucapion is a complicated topic as you can see. However, in summary, our main point is to be careful as if you lend your moveable assets (such as a car, big ladder or anything else) to another person, as they become the owner after 3 years.

Furthermore, these types of issues over possession definitely require legal advice, so you should refer to a lawyer if you have any doubts.