What is acquisitive prescription (“usucapión”) and what is it for?

Question

José Manuel Alburquerque · Accepted Answer

Acquisitive prescription is the way of becoming the owner of an asset, or the holder of another right such as a usufruct, through having possessed it as one's own for the period laid down by law. In Catalonia that period is twenty years for properties and three for movable assets. There is no need to have a title or to have acted in good faith. It is used above all so that someone who has held a property for many years without papers to prove it can be recognised as the owner and can defend themselves against anyone who claims it once the period has been completed. The effect occurs automatically when the period is completed, although if there is no other title a judgment declaring it is normally needed in order to register the asset in the possessor's name at the “Registro de la Propiedad”, the Land Registry. How the right is acquired The “Código Civil de Cataluña”, the Catalan Civil Code, has its own rules on it. To acquire by prescription, possession must meet these conditions: It must be possession as owner, that is, acting as the owner and not with the owner's permission or under a contract recognising that the asset belongs to someone else, such as a tenancy agreement. Anyone who holds the thing without acting as owner cannot acquire it by prescription while that situation continues. It must be public and peaceful, that is, in full view of everyone and without violence. It must last without interruption for the whole period. Possession is presumed to have been continuous. In addition, the time during which the asset was possessed by whoever passed it on can be added, for example the possessor's parents if it was inherited from them, or the person who sold it. No title, such as a sale or a gift, is needed, nor is good faith. Someone who knows that the property belongs to someone else can also acquire it by prescription if they possess it in that way for the whole period. The effect occurs without the possessor having to do anything. Acquisitive prescription can be relied on by the possessor, their heirs or any interested party, for example one of their creditors. In most of the rest of Spain, the applicable law is the Spanish Civil Code (“Código civil”), which distinguishes ordinary acquisitive prescription, which requires good faith and a title such as a purchase, from the extraordinary kind, which requires neither but takes more years. For properties, the ordinary kind generally requires ten years and the extraordinary kind thirty. What it is used for In practice it is used in these cases: To become the owner of something that has been possessed as one's own for years without a valid title. For example, a house bought with a private document that has been lost, a property belonging to an ancestor that changed hands without any paperwork or a strip of land that was joined to one's own decades ago. To defend against anyone claiming the asset. In Catalonia the owner's action to recover what is theirs never becomes time-barred, but it is of no use once someone else has acquired the asset by prescription. To put the paperwork in order and register the asset in one's own name at the Land Registry, with a judgment declaring that it has been acquired by prescription. Acquisitive prescription is not the same as the limitation of a debt. With acquisitive prescription, a right is gained by possessing. With limitation, a claim is lost by not exercising it. In Catalonia, easements, such as a right of way, are never acquired through the passage of time.