Adverse possession

In order for this right to be applied, there must be recourse to justice to invoke possession of the asset (extrajudicially, or judicially), and some requirements must be guaranteed:

• If there is a title of acquisition and registration, possession of the asset must have lasted for a period of no less than 10 years, counting from the date of registration. This in case there was good faith in the appropriation of the good. In case of bad faith, the minimum period increases to 15 years;
• If there is no record of the acquisition title, both periods mentioned are reduced by 5 years (to 5 and 10 years, respectively).
• If there is neither registration of the title nor mere possession, the mentioned periods are increased by another 5 years (to 15 and 20 years, respectively);
• The appropriation of the property cannot have occurred in a violent or hidden way. Otherwise, the deadlines for adverse possession will only be counted after the end of the violence, or its public disclosure.

By good faith it is understood: when the legitimate owner does not oppose the occupant, by bad faith: it is understood the opposite, that is when the legitimate owner tries to recover the occupied property, being faced with opposition by the occupant.

In case of bad faith, the legitimate owner can prove it by being accompanied by witnesses, or by the police authority, during the attempt to recover the asset. You can also file an eviction action in court, requesting the eviction of the occupant.

There are exceptions to the application of adverse possession such as: non-apparent property easements or rights of use and housing. The property easement is constituted when the immovable property is used by several people during a certain period of time (eg: a path that crosses a piece of land, a shared space in a condominium, etc.).

After judicially granted, this right applies retroactively to the date of commencement of possession.

Below are some of the articles of the Portuguese Civil Code that govern the application of adverse possession to real estate:

ARTICLE 1287
(Notion)
Possession of the right to property or other real rights of enjoyment, maintained for a certain period of time, entitles the possessor, unless there is a contrary provision, to acquire the right to which the exercise corresponds to its action: this is called adverse possession.

ARTICLE 1288
(Retroactivity of adverse possession)
Invoked adverse possession, its effects go back to the date of the beginning of possession.

ARTICLE 1289
(Ability to acquire)
1. Adverse possession takes advantage of everyone who can acquire it.
2. The incapable may acquire by adverse possession, either by themselves or through the persons who legally represent them.

ARTICLE 1290
(Usecaption in case of detention)
Precarious holders or possessors cannot acquire for themselves, by adverse possession, the right owned, except when the title of possession is inverted; but, in this case, the time required for adverse possession only begins to run from the inversion of the title.

ARTICLE 1291
(Usecaption by owner)
Adverse possession by a co-possessor in relation to the object of common possession is equally beneficial to the other co-possessors.

ARTICLE 1292
(Application of prescription rules)
The provisions relating to the suspension and interruption of prescription, as well as the provisions of Articles 300, 302, 303 and 305, apply to adverse possession, with the necessary adaptations.

ARTICLE 1293
(Rights excluded)
The following cannot be acquired by adverse possession:
a) Non-apparent building easements;
b) Use and housing rights.

ARTICLE 1294
(Just title and registration)
If there is a title of acquisition and registration thereof, adverse possession takes place:
a) When the possession, being in good faith, has lasted for ten years, counted from the date of registration;
b) When the possession, even if in bad faith, has lasted fifteen years, counting from the same date.

ARTICLE 1295
(Registration of mere possession)
1. If there is no registration of the title of acquisition, but registration of mere possession, usucaption takes place:
a) If the possession has continued for five years, counted from the date of registration, and it is in good faith;
b) If the possession has continued for ten years, counting from the same date, even if not in good faith.
two.Mere possession will only be registered in view of a final judgment, in which it is recognized that the possessor has possessed peacefully and publicly for a period of not less than five years.

ARTICLE 1296
(Missing registration)
If there is no record of the title or mere possession, adverse possession can only take place after a period of fifteen years, if possession is in good faith, and twenty years, if possession is in bad faith.

ARTICLE 1297
(Violent or hidden possession)
If the possession was constituted with violence or taken secretly, the terms of adverse possession only begin to run as soon as the violence ceases or the possession becomes public.