Usucapión (Usucaption in English), also known as prescripción adquisitiva (acquisitive prescription), is a legal mechanism in Spain that allows a person to acquire ownership of a property through continuous and uninterrupted possession over a legally defined period. Rooted in Roman law and codified in the Spanish Civil Code, usucapión provides a formal avenue for individuals who have possessed property in good faith to become its legal owners.
What is Usucapión in Spain?
Usucapión is a legal method of acquiring property rights without a traditional sale or inheritance. If a person occupies and uses a property as their own for a prolonged period, they may eventually become the legal owner.
The legal basis for usucapión is found in Articles 1930 and 609 of the Spanish Civil Code. These provisions establish that ownership and other real rights can be acquired through prescription, provided the possessor meets the necessary legal conditions.
Legal Rationale
Acquisitive prescription serves to penalise owners who neglect their property and to promote legal certainty by resolving disputes over long-term use. It also incentivises proper management of property to avoid abandonment
How does Usucapión work?
The usucapión process is based on continuous, public, and peaceful possession of a property over a legally mandated duration. The process can be divided into two main types:
1. Ordinary Usucapión (Usucapión Ordinaria)
This form of usucapión applies when the possessor meets the following conditions:
- Possession: The possessor must act as the de facto owner, using the property openly, peacefully, and continuously.
- Good Faith (Buena Fe): The person must genuinely believe they are the rightful owner, unaware of any irregularities in the acquisition.
- Just Title (Justo Título): There must be a valid legal document (e.g., a purchase contract or inheritance agreement) supporting the possessor’s claim. Even if the document is defective (e.g., invalid due to technical reasons), it may still support ordinary usucapión.
2. Extraordinary Usucapión (Usucapión Extraordinaria)
This applies if good faith or just title is absent. In extraordinary usucapión:
- The possessor must still occupy the property openly, peacefully, and continuously.
- Good faith or an initial legal title is not required.
- Because it lacks additional guarantees like good faith or just title, the required possession period is longer.
Requirements for Usucapión
The length of time required to claim ownership varies depending on the type of usucapión and the type of property involved.
- Immovable Property (Real Estate like land, houses, and buildings):
- Ordinary Usucapión: 10 years (if the legal owner is present in Spain) or 20 years (if the legal owner is absent).
- Extraordinary Usucapión: 30 years, regardless of good faith or legal title.
- Movable Property (e.g., cars, furniture, valuable assets):
- Ordinary Usucapión: 3 years (with good faith and legal title).
- Extraordinary Usucapión: 6 years (without good faith or legal title).
How does Spanish Usucaption compare to the UK and the US?
Usucapión vs. Adverse Possession in the UK
In the UK, a similar concept exists known as adverse possession. However, there are key differences:
- In the UK, a person must possess the property for at least 10 years (or 12 years for unregistered land).
- The possession must be open, exclusive, and without permission from the owner, and the possessor must apply to the Land Registry to formalise ownership.
- If the true owner objects during the application process, the claim may be denied.
Key Difference: UK adverse possession does not require good faith or just title, but the true owner has stronger legal options to intervene compared to Spain.
Usucapión vs. Squatter’s Rights in the US
In the United States, adverse possession laws vary by state, but they generally require:
- Continuous possession for 5 to 30 years, depending on state law.
- Exclusive and hostile possession (meaning without consent from the owner).
- Open and notorious use of the land (i.e., the possessor is not hiding their use of the property).
Key Difference: Unlike Spain, US property laws typically do not require good faith to claim ownership, though evidence of intention to possess the property is necessary.
What is the procedure for Usucapión?
The usucapión process in Spain generally involves the following steps:
- Proof of Continuous Possession: The claimant must provide evidence of uninterrupted, public, and peaceful possession over the required period. This could include utility bills, tax payments, or witness statements confirming occupation.
- Judicial Recognition: The possessor must file a legal claim in court to obtain official ownership recognition. The true owner may contest this claim.
- Notarial Route (Optional): If the property is unregistered, claimants can apply through a notarial expediente de dominio to register ownership in the Spanish Property Registry (Registro de la Propiedad).
- Final Court Ruling and Registration: If the court accepts the usucapión claim, the claimant can register the property in their name.
How much does Usucapión cost?
The costs of pursuing usucapión depend on legal fees, notarial expenses, court costs, and property registration fees. Typical expenses include:
- Legal lawyer fees: €3,000 to €7,000 (higher for complex cases).
- Court fees: Vary depending on the case and location.
- Notary and registry fees: €800 to €2,500 if using the notarial process.
Costs may increase if the claim is contested or if additional property surveys are required.
When is Usucapión not applicable?
Usucapión does not apply in certain circumstances, including:
- If the claimant has possessed the property with permission from the owner (e.g., as a tenant or borrower).
- If the property belongs to public or government entities (as public property cannot be acquired through usucapión).
- If the possession was interrupted during the required period (e.g., the owner successfully reclaimed the property before the time requirement was met).
How long does a Usucapión trial take?
The duration of a usucapión legal process depends on various factors, including case complexity and court workload.
- Uncontested cases: May take 6 to 12 months if processed efficiently through a notary.
- Contested cases: Can take 2 to 5 years or longer if the original owner legally challenges the usucapión claim.
Conclusion
Usucapión is a powerful legal concept in Spain that allows individuals to acquire ownership of real estate or movable property through extended possession. The process requires fulfilling specific legal conditions, including continuous, peaceful possession and, in the case of ordinary usucapión, good faith and a valid title.
While usucapión has similarities with adverse possession in the UK and the US, Spanish law generally emphasizes long-term possession periods and formal legal recognition through judicial or notarial means.
If you are considering claiming a property through usucapión, consulting with a legal expert in Spanish property law is strongly recommended to navigate the legal process effectively.
Important note: This guide is not a substitute for legal advice
This guide is provided for informational and orientation purposes only and is not intended as a substitute for professional legal, financial, or other advice. While every effort has been made to ensure the accuracy and completeness of the information provided, no warranties or guarantees, express or implied, are made regarding its accuracy, completeness, or currency. The information contained in this guide may be outdated or subject to change without notice. Use of this guide is at your own risk, and the authors, publishers, and distributors accept no responsibility or liability for any losses or damages that may result from its use. It is strongly recommended that you consult a qualified professional for specific advice pertaining to your situation.
