Adverse Possession and Real Estate Registration in Spanish Civil Code

Posted on May 5, 2024 in Law & Jurisprudence

Calculating the Period for Adverse Possession: Special Reference to the Computation of the Possession of the Deceased

Article 1960 of the Spanish Civil Code (CCi)

  1. The current owner can add the time of possession of the deceased (causante).
  2. It is assumed that the current owner, who had possessed in earlier times, has owned during the intermediate period.
  3. The initial day of the computation is excluded, but the last day is considered fulfilled in full (up to 24 hours, equivalent to the start of counting).

Union of Possessions

The 1851 CCi Project required good faith possession for both parties involved in the union of possessions. The current CCi does not specify, leading to different interpretations:

  • Option A: The rule remains the same, and only possessions in good faith can be joined.
  • Option B: Possessions in good and bad faith may be joined. This option has two alternatives:
    • B1: For ordinary adverse possession, the entire period must be in good faith. The unity of possession in good and bad faith only serves for extraordinary adverse possession.
    • B2: A proportional rule is applied, similar to Article 1958.2° for adverse possession of property between present or absent parties. For example, every two years of possession in bad faith would count as one year in good faith.

Interruption of Adverse Possession: Relationship Between the Means Referred to This Disruption and Civil Requirements

Article 1943 of the CCi

Possession is interrupted, for purposes of limitation, naturally and civilly.

Natural Interruption

Possession is interrupted naturally when, for any reason, it ceases for more than a year (Article 1944 CCi).

Civil Interruption

Any express or tacit recognition by the possessor of the owner’s right also disrupts the usurpation (Article 1948 CCi). Civil interruption takes two forms:

  1. Summons: A summons made to the possessor as a result of a lawsuit by the previous possessor or the holder of the right being usucapiendo (whether a tutela court summary possession action or real action). However, if the summons is performed by a hierarchically or territorially incompetent judge, or if the citation is invalid for lack of legal formalities, the actor lets the instance expire, withdraws the claim, or the possessor was acquitted of demand, the interruption does not occur (Articles 1945 and 1946 CCi).
  2. Request for Conciliation: If admissible, a request for conciliation also disrupts possession if, within two months of the conclusion of conciliation without agreement, or the time fixed by the judge for its celebration when the act could not occur due to the default of the owner required to appear before the Judge, the possessor demands the possession or ownership of the thing in question (Article 1947 CCi).

Effects of Adverse Possession

  1. Acquisition of the usucapido right retroactively (since the beginning of adverse possession).
  2. Correlative termination of the right in the previous titleholder (Articles 1962 and 1963 CCi).
  3. It must be claimed by those seeking to make use of it (cannot be assessed ex officio by the Court).
  4. The gained usucapion is waived for those who have the ability to transfer the usucapido right. This waiver may be express or implied (e.g., starting to pay rent for the use of the property whose ownership is usucapio), but the right to usucapir in the future cannot be waived (Article 1935 CCi).
  5. The effects of the renunciation of adverse possession are different from the waiver of the right won by adverse possession. The thing does not become property of the state administration or property if unclaimed (if furniture), but restores the right of the previous owner.
  6. The creditors and anyone else interested in asserting prescription may use it, despite the express or implied waiver of the debtor or owner (CCi).

Adverse Possession of Easements: Special Reference to the Discontinuous and Non-Apparent

Article 537 of the CCi

Continuous and apparent easements are acquired under title or by prescription of 20 years.

Article 539 CCi

Non-continuous or non-apparent easements can only be acquired under title, which, according to Article 540, can only be supplied by written recognition of the owner of the servient estate or by a final sentence.

The Problem

The question is whether the prescription of 20 years, and the exception for non-continuous or non-apparent easements, applies only to the extraordinary usurpation of rights, or if in the case of rights in rem there is only one prescription of 20 years, which would exempt easements that are not continuous (because they are not capable of uninterrupted possession) and also non-apparent (they would not be susceptible to public ownership).

The fact that Article 1959 refers to extraordinary usurpation, establishing an exception for discontinuous or non-apparent servitudes which it does not mention when it regulates ordinary adverse possession in Article 1957, coupled with the fact that adverse possession requires regular possession, leads to the conclusion that the exception in Article 539 only refers to extraordinary usurpation. Therefore, Article 537 only imposes a period of 20 years for the same prescription (not for the ordinary, which could also affect discontinuous or non-apparent servitudes and whose term would usually be 10 or 20 years as referred to in Article 1957 CCi). However, the question remains doubtful.

Initial Day of Calculation

Article 538 states that for positive easements, the initial day of calculation is the one in which the owner had started to engage in the servitude, while for negative easements, it is the day the owner of the servient estate formally prohibited the realization of the fact that the easement would make lawful.

General Means of Inmatriculation (Referred to in the Mortgage Law) and Differences Between Them as to the Effect of Registration

Article 199 of the Mortgage Law (LH)

The general means of inmatriculation are:

  1. Domain File Proceeding: Before the Trial Judge of the place where the property is located and in accordance with Article 201 LH.
  2. Government Securities Purchase:
    • Granted by convincing those who can prove having acquired the right prior to the date of such titles (Articles 205 LH and 298 RH).
    • Complemented by affidavit if there is no such reliable accreditation (Article 203 LH).
  3. Certificate: Issued by the official of the government or institutions of the Catholic Church who are responsible for the administration of property belonging to such entities, provided that there is no written title of domain and the title of purchase or how they were acquired is stated.

According to Law 13/1996 on fiscal, administrative and social order, these certificates must be accompanied by a descriptive and graphical cadastral certification of the properties to be registered. LH suspends the effects “on third parties” of the entries made by certified or purchase securities for two years from the date of the entries.

Purpose of the Inscription of Registrable Rights and Formal Requirements to Be Met by Stating the Titles in Those Rights to Be Registered

General Rule

According to the LH and ITC, the registrable rights are ownership or domain and other rights aimed at real property.

Article 98 and 9 RH LH

Personal rights or credit rights have no liens or consideration of real rights and, therefore, are not only exempt from registration (although relating to real estate), but if they have been registered by mistake, “will be canceled at the request of an interested party.” As special law supersedes general law, it is possible for a legal norm to provide for the possibility of registering real property legal situations that are not real rights, but it does not seem possible to interpret these special rules extensively (examples: LH Article 2.5, which provides for the registration of the lease of real property, or LH Article 8.4, which provides for the registration of the statutes of horizontal property regime).

Form Required for Registration

Under Article 3 LH, registrable rights must consist of:

  • Public writing, enforceable, or real.
  • Document issued by the judicial authority or by the Government or its agents (which implies the general government), in the manner prescribed by the regulations.

Means of Advertising and Formal Relationship Between the Information Provided Through These Means and Content of the Seats in Case of Disagreement

Article 222 LH

The means of advertising are:

  • Direct manifestation of the books (quite exceptional as DGRN doctrine, and transformed into manifestation for the content of the seats by section 332.4 of the RH, which refers to the other methods set forth immediately).
  • Note.
  • Simple information certification.

Law 24/2005 of November 18

The Registrar is liable for damages in case of error or omission in the issuance of the simple information notes, coinciding with what happens in the event of discrepancies between the information provided by certification and the contents of the registry entries (LH).

Prevalence of Actual Content

The actual content of the seats prevails over the certification or simple information note in case of disagreement (LH).