Ownership, possession and the passage of time: recovery of ownership, acquisitive prescription and unfair delay after STS 386/2026

1.The “acción reivindicatoria”: ownership, identification of the thing and wrongful possession

The “acción reivindicatoria”, the action for recovery of ownership laid down in article 348 of the “Código Civil” —the Spanish Civil Code—, is the classic expression of the right of ownership. That provision defines ownership as the right to enjoy and dispose of a thing or of an animal, with no limitations other than those laid down by statute, and grants the owner an action against the holder and the possessor of the thing or the animal in order to recover it. The action for recovery of ownership is an action in rem, seeking an order against the defendant, which allows the owner to require restitution of the thing from a person who possesses it without any right to do so. Bringing it requires three elements to be proved. First, the claimant's ownership, that is to say, title to the thing, which may derive from any method of acquisition recognised by Spanish law, such as occupation, operation of law, gift, testate or intestate succession, contracts accompanied by delivery, or prescription. Secondly, the precise identification of the thing claimed, which is particularly relevant in the case of immovable property, where the case law has insisted on the need for the property claimed to coincide with the one described in the claimant's title documents, leaving no doubt as to boundaries, area or location. Thirdly, the defendant's unjustified possession, understood as possession without title or with a title that is ineffective against the owner.

The action for recovery of ownership comes up against the defendant's possession, which may be natural or civil. The Civil Code distinguishes natural possession, as the holding of a thing or the enjoyment of a right, from civil possession, which adds the intention of holding the thing or the right as one's own. It specifies that possession may be held as owner —“en concepto de dueño”— or as a mere holder, where the thing is kept or enjoyed while ownership belongs to another person. Only possession as owner can serve as a basis for acquiring ownership by prescription. A possessor as owner enjoys the presumption of just title and cannot be required to produce it. These categories are decisive for the confrontation between the action for recovery of ownership and acquisitive prescription.

2.Ordinary and extraordinary acquisitive prescription: possession as owner and the passage of time

Acquisitive prescription, or “usucapión”, allows ownership and other rights in rem to be acquired through prolonged possession, on the conditions laid down by statute. The Civil Code distinguishes ordinary acquisitive prescription, which requires just title and good faith, from extraordinary acquisitive prescription, which dispenses with both requirements. For immovable property, it provides that ownership and other rights in rem are acquired by prescription through possession for ten years as between persons present and twenty as between absentees, with good faith and just title. Ordinary acquisitive prescription additionally requires possession to be as owner, public, peaceful and uninterrupted. Good faith is defined in the provisions on possession and is likewise required for acquisitive prescription.

Extraordinary acquisitive prescription dispenses with title and with good faith. The statute provides that ownership and other rights in rem over immovable property are likewise acquired by prescription through uninterrupted possession for thirty years, with no need for title or good faith and with no distinction between persons present and absentees. The requirement of possession as owner, public, peaceful and uninterrupted, remains, but Spanish law allows a person who has possessed in that way for thirty years to acquire ownership even where he has no title or has acted without good faith. The case law has insisted that possession as owner must be manifested through unequivocal external acts, mere physical holding not being sufficient, nor possession by tolerance or under a personal title that acknowledges another's ownership. In examining the possible extraordinary acquisitive prescription of the Pazo de Meirás by the heirs of the previous possessor, STS 386/2026 concludes that thirty years have not elapsed since their possession could be characterised as possession as owner and that, in addition, the nature of the asset as one allocated to a public service precludes acquisitive prescription until a clear removal from public use takes place.

The relationship between the action for recovery of ownership and acquisitive prescription is a direct one. As an action in rem over immovable property, the action for recovery of ownership is subject to a thirty-year limitation period. That period is coordinated with extraordinary acquisitive prescription: the owner may bring the action for thirty years, but if during that time another person has possessed as owner, publicly, peacefully and without interruption, without title or good faith, that person may acquire ownership by prescription. Academic commentary has stressed that it is not ownership itself that is extinguished by limitation, but the action to claim it against a possessor who has completed acquisitive prescription, and that ownership may be displaced by the possessor's original acquisition.

3.Possessing as owner, the public domain and tacit removal from public use

STS 386/2026 offers a privileged opportunity to clarify what possessing as owner means and how that category operates in relation to assets allocated to a public service. The Supreme Court confirms that the State possessed the Pazo as owner, publicly, peacefully and without interruption, from 1938 to 1975, by allocating it to a public service as the official residence of the Head of State, funded and managed by the public administration. The allocation of the building to a public service, with public funding and public management, constitutes an unequivocal act of ownership under the rules on possession. Its use by the Head of State takes place in his institutional capacity, not as a private owner.

The judgment rejects the argument that the payment of taxes by the private possessor interrupts the State's acquisitive prescription, taking the view that the cadastral records neither prove ownership nor amount to recognition by the State of the possessor's right. It also rules out that the cessation of its use as an official residence in 1975 brought about a tacit removal from public use converting the asset into a patrimonial one capable of being acquired by prescription. Tacit removal from public use requires conclusive acts by the public administration revealing an intention to abandon the allocation and, in this case, surveillance duties were maintained until 1990, which precludes any finding that the asset had lost its public character.

According to the judgment, possession as owner by the heirs of the previous possessor could only have begun in the early nineties, when the surveillance activities ceased and the State stopped performing acts of possession. The thirty-year period required for extraordinary acquisitive prescription has not elapsed since then. The conclusion is that no acquisitive prescription has taken place and that the State's action for recovery of ownership is not neutralised by acquisitive prescription.

4.Possessors in good faith and in bad faith: fruits, expenses and settlement of the possessory position

The action for recovery of ownership is not exhausted by the declaration of ownership and the order to return the thing. The settlement of the possessory position —the “liquidación del estado posesorio”— requires the possessor's good or bad faith to be determined, together with the consequences in terms of fruits and expenses. The Civil Code draws a clear distinction between a possessor in good faith and a possessor in bad faith. A possessor in good faith makes the fruits received his own for as long as possession is not legally interrupted. Natural and industrial fruits are deemed to have been received once they are gathered or severed, and civil fruits are deemed to accrue day by day and belong to the possessor in good faith in that proportion. Where good faith ceases and there are outstanding fruits, the possessor is entitled to the expenses incurred in producing them and to the share of the net produce proportionate to the time of his possession, the charges being apportioned in the same way. The owner may grant the possessor in good faith the right to complete the cultivation and harvesting of the outstanding fruits by way of compensation, and if the possessor does not accept, he loses the right to any other compensation.

As regards expenses, the statute provides that necessary expenses are to be reimbursed to every possessor, but only a possessor in good faith may retain the thing until they are paid. Useful expenses are reimbursed to a possessor in good faith with the same right of retention, and the person who succeeds against him in the possession may elect either to pay the amount of those expenses or to pay the increase in value which the thing has acquired through them. Expenses of pure luxury or mere pleasure are not reimbursable to a possessor in good faith, although he may remove the ornaments with which he has embellished the principal thing if it suffers no deterioration and if the successor in possession does not prefer to pay the amount spent. A possessor in bad faith, by contrast, must reimburse the fruits received and those which the lawful possessor could have received, and is entitled only to be reimbursed for the necessary expenses incurred in preserving the thing. Expenses on improvements of luxury and pleasure are not reimbursed to him, although he may remove the objects in which those expenses were invested if the thing suffers no deterioration and the lawful possessor does not prefer to keep them by paying their value.

STS 386/2026 applies these rules to the Pazo de Meirás. The “Audiencia Provincial”, the provincial appeal court, had classified the heirs as possessors in good faith and had recognised their right to be compensated for the necessary and useful expenses incurred on the property from 1975 until they were served in the proceedings. The Supreme Court confirms that classification and upholds the right to the settlement of the possessory position, rejecting the relief sought by the State, namely that the heirs be classified as possessors in bad faith so as to exclude that settlement. The Chamber takes the view that the bad-faith contention was introduced out of time, amounting to a mutatio libelli, and that in its claim the State had accepted that the possessory position was to be settled, thereby implicitly acknowledging the defendants' good faith.

5.Unfair delay and the passage of time: limits on the action for recovery of ownership

The doctrine of unfair delay —the “retraso desleal”, inspired by the German Verwirkung— raises the question whether the late exercise of a right may be rejected where the prolonged inactivity of the holder of that right has created in the obligor a legitimate expectation that the right will not be exercised. It is a mechanism for safeguarding reliance and protecting good faith, resting on article 7 of the Civil Code, under which rights must be exercised in accordance with the requirements of good faith and the law does not protect abuse of rights or their anti-social exercise. The prohibition of unfair delay means that a right may not be exercised where its holder has for a long time made no effort to assert it, thereby allowing the other party, through that failure to act, objectively to expect that the right will no longer be exercised. Its application requires, in addition to the time factor, other requirements of a subjective nature: the failure to exercise the right, the debtor's reliance on its not being enforced and a significant lapse of time before the claim is brought.

STS 386/2026 examines the plea of unfair delay raised by the possessors of the Pazo, who argued that the State's inactivity over decades had created a legitimate expectation that it would not claim ownership. The Supreme Court rejects the application of the doctrine in this case. It takes the view that the mere passage of time is not sufficient unless accompanied by acts of the holder of the right capable of creating a reasonable expectation that the right has been abandoned, and that the nature of the asset as one allocated to a public service and the persistence of acts of surveillance preclude any finding of a failure to act capable of creating such reliance. The Chamber recalls that the doctrine of unfair delay does not repeal the rules on limitation and that a person who asserts his rights within the statutory period cannot be said to be exercising them in bad faith where there are no facts, acts or conduct capable of creating in the obligor the expectation that they will not be enforced.

The judgment shows the limits of the doctrine of unfair delay in the field of the action for recovery of ownership and of acquisitive prescription. The passage of time may consolidate the possessor's position through acquisitive prescription, but the owner's mere inactivity, without conduct of his own capable of creating reliance, is not enough to prevent the action from being brought within the statutory time limits. The protection of reliance requires something more than silence; it requires conduct which, by its repetition and clarity, makes the expectation that the right will not be exercised a reasonable one.

6.Conclusion: can ownership be lost by not claiming it?

Ownership may be lost through the passage of time, but not through mere inactivity. The action for recovery of ownership allows the owner to recover the thing from a possessor without title, provided that he proves his ownership, identifies the thing and establishes the defendant's wrongful possession. Ordinary and extraordinary acquisitive prescription offer the possessor who possesses as owner, publicly, peacefully and without interruption, the possibility of acquiring ownership after ten, twenty or thirty years, as the case may be, even without title or good faith in the case of extraordinary acquisitive prescription. The action for recovery of ownership is subject to a thirty-year limitation period, coordinated with extraordinary acquisitive prescription, and the doctrine of unfair delay adds a good-faith review of the late exercise of rights, but it does not replace limitation, nor does it apply merely because time has elapsed.

In resolving the dispute over the Pazo de Meirás, STS 386/2026 offers a synthesis of these elements. It upholds the State's action for recovery of ownership, denies extraordinary acquisitive prescription for want of the requisite period and because of the public nature of the asset, rejects unfair delay for want of acts capable of creating reliance, and recognises the possessors' good faith, with a right to the settlement of the possessory position in terms of fruits and expenses. For litigation practice, the judgment is a guide to how to frame the action for recovery of ownership against prolonged possession, how to analyse acquisitive prescription by reference to the character of the possession and to time, how to settle the possessory position according to good or bad faith, and how far the doctrine of unfair delay can go in protecting reliance without distorting limitation or depriving the right of ownership of its content.

Alburquerque Abogados|José Manuel Alburquerque|Barcelona 14/04/2026

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