Possession and Adverse Possession in Spanish Civil Law
Conservation of Possession: Possessory Assumptions
A) Presumption of Continuity
This rebuttable presumption covers the following areas:
- Continuity of Possession Itself: The presumption of possession during the intervening time in favor of the current owner to prove their possession at an earlier age (art. 459 CCi and 1960.2).
- Continuing the Concept of Possession: A presumption that possession is still enjoyed under the same concept it was acquired, until proven investment or interversion of that concept. Interversion is derived from a bilateral act or opposition from the holder to the “right of the owner” (art. 436 CCi).
- Continuing Good Faith: The assumption that possession acquired in good faith remains so until proof of acts demonstrating the holder is aware they possess the thing improperly (art. 435 CCi).
B) Presumption of Possession of Property Located in a Building
Article 449 of the CCi states that possession of a building implies possession of the furniture and objects within it, unless otherwise stated or shown. “Furniture” refers to things used to furnish rooms and jewelry, while “objects” are those used for the property’s use. The presumption does not extend to the concept of possession (e.g., possession of furniture as a tenant if that is the concept under which the building is possessed).
Causes of Extinction of Possession: Special Reference to Loss
Article 460 of the CCi lists the ways in which possession can be extinguished:
- Loss of the thing.
- Abandonment or gratuitous transfer to another.
- Destruction or total loss of the thing, or its removal from commerce.
- Possession by another, even against the will of the former owner, if the new possession has lasted over a year.
Loss of the Thing
Article 461 CCi suggests that possession is lost if the thing is lost in a place outside the possessor’s control. However, Manresa’s interpretation argues that if the location of the thing is unknown, it cannot be determined whether it is under the owner’s control, and therefore possession should not be considered lost. Additionally, Article 460.4 and 1944 CCi suggest that even with the loss of physical control and possession by another, the previous owner only loses possession after one year. Therefore, arguments exist for both the immediate termination of possession upon loss of physical control and the maintenance of possession for one year from the loss of control.
Settlement of Possessory Status: Good Faith vs. Bad Faith Possessor
Version 1: Possessor in Good Faith
Fruits
The possessor in good faith has the right to natural and industrial fruits, as well as civil fruits or rent, in proportion to their time of possession (art. 451 CCi). For fruits pending at the time possession legally stops, Article 452 requires apportionment between the possessor in good faith and the new possessor. The new possessor may choose to indemnify the previous possessor or allow the fruits to mature, in which case the previous possessor loses any right to compensation.
Expenses
Necessary and useful expenses are payable to the possessor in good faith, who is entitled to retain the thing until paid. For useful expenses, the new possessor may choose to pay the amount spent or the increased value of the thing (453 CCi). For luxury expenses, the owner only has to pay if the thing is not deteriorated and if they choose to keep the improvements (454 CCi).
Impairment or Loss
The possessor in good faith is not responsible for impairment or loss unless it is proven they caused it intentionally (457.1 CCi).
Version 2: Possessor in Bad Faith
Fruits
The possessor in bad faith is not entitled to fruits and must pay charges levied on the possession that have become apparent (art. 455 CCi).
Expenses
The possessor in bad faith is only entitled to reimbursement for necessary expenses and may remove luxury items if the thing is impaired by their removal or if the new possessor chooses not to keep them (455 CCi). Improvements or useful expenses are not paid to the possessor in bad faith (361 CCi).
Impairment or Loss
The possessor in bad faith is responsible for impairment or loss, even if caused by force majeure, if they maliciously delay the delivery of the thing to its rightful owner. The only exception is when the unforeseen circumstances would have affected the rightful owner’s things in the same way (457.2 CCi).
Effects Linked to Possession by the Legal System
- Judicial Defense of Possession: Any possessor, regardless of good or bad faith, can defend their possession through specific actions (art. 446 CCi).
- Legitimating Function: The possessor is presumed to be the rightful owner and cannot be obliged to prove ownership unless evidence is presented that destroys the presumption (448 CCi). This applies to possessors other than the owner.
- Basis for Adverse Possession: When possession is held as owner or right holder, publicly, peacefully, and uninterruptedly for the time required by law, the possessor acquires the right possessed (CCi).
Characteristics of the Summary Judicial Process of Possession
The Civil Procedure Act of 1881 regulated injunctions to retain and regain possession. The Civil Procedure Act 1/2000 repealed these procedures, and protection of possession is now done through:
- Oral proceedings (250.4 LECI) with specific characteristics.
- Active legitimacy for filing the claim belongs to any possessor, including violent or clandestine possessors (446 and 441 CCi), heirs (440 CCi), and both mediate and immediate possessors in situations of split ownership.
- Passive legitimacy belongs to the person who disturbed or dispossessed the plaintiff, or who did so through another acting on their instructions.
- The process is expedited, and the only facts considered are the plaintiff’s prior possession and the act of disturbance or dispossession by the defendant.
- The limitation period for filing the action is one year from the act of disturbance or dispossession.
- The sentence does not make a final decision regarding the right to own.
Requirements and Types of Adverse Possession
Usucapion/Adverse Possession
Requirements for both ordinary and extraordinary adverse possession:
- Public Possession: Using the thing as it is commonly used.
- Peaceful Possession: Obtained without contradicting the will of the previous holder. In cases of violent or secret possession, over a year is required to purge the vice.
- Continuous Possession: Over the time required for adverse possession.
- Possession as Owner or Right Holder: Possession must be held with the intention of being the owner or right holder.
Term
- Extraordinary Adverse Possession: 6 years for movable property rights and 30 years for real estate (1955.2 and 1959 CCi).
- Adverse Possession by Theft or Robbery: Requires that the crime or offense and the penalty imposed have prescribed, and the action to enforce liability has expired (1956 CCi).
Ordinary Adverse Possession
Additional requirements for ordinary adverse possession:
- Good Faith: Belief that the person transferring the thing owned it and could convey the true right (1950 CCi).
- Just Title: The title must be true, valid (would have sufficed to convey the right if the transferor had it), and proven (1952, 1953, and 1954 CCi). For movable property rights, a just title is not required (1955.1 CCi).
Term
- 3 years for movable property rights.
- 10 years for real estate between present parties and 20 years between present and absent parties (1955.1, 1957, and 1958 CCi).