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August 28, 2015
Nowadays it is very common for a property to be acquired through either a sale, donation or inheritance. However, there are also other ways to acquire the property, one of which is usucaption, also known as acquisitive prescription.
Usucaption is a process by which ownership of property can be gained by possession of it beyond the lapse of a certain period of time (known as acquiescence). That is to say, if a person lives in a property whose owner is absent for a specified period of time (30 years in Spain) and uses the property in the way a normal owner would, this individual, officially known as the adverse possessor, will become the owner of the property.
To be able to acquire property in this way, it is important that the occupation is done in peaceful and continuous manner and this can be ordinary or extraordinary. The difference between ordinary and extraordinary is that in ordinary cases, the holder has registered with the Land Registry upon the purchase and in his understanding has lawfully acquired the property, thus becoming a rightful owner. The issue here is that if the seller isn´t in fact the rightful owner of the property, but only has the documentation, should the rightful owner to whom the property belongs turn up within a certain period of time to claim back his property, the new owner will lose it. The period of uninterrupted possession is 10 years, after which the new owner will become a fully rightful owner. In extraordinary cases, the holder is not rightly registered in the Land Registry and the period of uninterrupted possession is 30 years, before he becomes a rightful owner.
Thus, it is quite common in rural and urban areas that some properties are not registered in the name of those who possess them and may not even know the correct land boundaries. This is where it is possible to acquire a property without being its title holder.
Referring to the above, in case of extraordinary adverse possession, current case law indicates that the third purchaser would prevail if acting in good faith (proving that he has tried to reach the real owner) within the year following the acquisition from the occupants, unless regulated otherwise in some cases outlined in Article 36 of the Mortgage Act.
Therefore, in order to obtain extraordinary adverse possession, numerous public agencies, such as the Town Hall, Land Registry must carry out a thorough investigation of all aspects of the property. Therefore a very specialized legal assistance in civil matters urban and experienced in these conflicts is necessary.
At Lexland our Department of Urbanism and Regional Planning has an extensive knowledge and experience in such procedures and should you find yourself in a similar situation, we will be happy to help you find the best way to defend your interests.