Acquisitive prescription

The Supreme Court (TS) has dismissed the cassation appeal filed by the heirs of a person who tried to acquire a property through a donation which was ultimately declared void, and a subsequent sale that turned out to be simulated. In other words, the private documents with which the family claimed ownership were not valid , and the sale transaction was considered a "charade" to simulate a transfer that was not real.

The property was possessed and managed as an official residence of the Head of State from 1938 to 1975. During those years, construction works were carried out and various expenses that the Administration paid public. After the death in 1975, the heirs continued with the possession and maintenance of the property , and also contributed part of the estate to a commercial company.

The General State Administration sued claiming ownership , arguing that it had acquired the estate through extraordinary prescription (that is, by having possessed it for the necessary time) during the entire period in which it was used as an official residence , and that it was also a property subject to a public service , with the nature of public domain. It requested the restitution of the property and the registration cancellation , understanding that subsequent private titles were also ineffective.

The heirs , on their part, argued that they owned as owners and in good faith , denied the public use and also discussed the nullity of the sales contract. They even argued that, since 1975, they had been able to acquire by adverse possession in their favor . But the SC concludes that the State possessed "as an owner" from 1938 to 1975 with acts of domain linked to a public service, and that within that time extraordinary adverse possession in favor of the State was consummated.

Regarding the heirs, the court points out that they did not have enough time to acquire by extraordinary adverse possession because they did not do so "as an owner" until the nineties, and when the lawsuit was filed, the required time limit had not yet elapsed (CC art. 1959 is mentioned). In addition, it is indicated that while a property is affected by a public service adverse possession does not fit, and that to talk about tacit disaffection clear acts are needed demonstrate that public use is abandoned. The Supreme Court (TS) recalls that

paying taxes or appearing as liable party in registries such as the Cadastre does not prove by itself to be the owner be owner nor is mere evidence that one owns "as an owner". However, to settle the "possession status", it is considered that the possession of the appellants was in good faith and is recognized to them right to be compensated for useful and necessary expenses.

In disputes regarding adverse possession, our professionals can advise you in the defense of your claims and rights.