Usucapio

By Usucapio (from the Latin: "to acquire for use") is meant "the right of possession that an individual acquires over a movable or immovable property, due to having used it for a given period of time, in a continuous manner, as if you were the real owner of that asset. "

For this right to be applied, it will be necessary to have recourse to justice to invoke the possession of the property (extrajudicially, or judicially), being necessary that certain requirements are guaranteed:

  • In case of acquisition and registration title, the possession of the property must have lasted for a period of not less than 10 years, counting from the date of registration. This if 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 registration of the acquisition title, both terms mentioned are reduced by 5 years (to 5 and 10 years, respectively).
  • If there is neither registration of the title nor of the mere possession, the aforementioned terms increase by another 5 years (to 15 and 20 years, respectively);
  • The appropriation of the good cannot have occurred in a violent way, or in a hidden way. Otherwise, the deadlines for the purpose of adverse possession will only be counted after the end of the violence, or after its public disclosure.

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

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

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

Once granted in court, this right has retroactive application to the date of the beginning of the investiture.

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, allows the owner, unless otherwise provided, to acquire the right to which the exercise corresponds to his action: this is called Usucapio.

ARTICLE 1288
(Retroactivity of adverse possession)
Invoked usucapion, its effects retract to the date of the beginning of the investiture.

ARTICLE 1289
(Ability to acquire)
1. Usucapio benefits everyone who can acquire.
2. The incapacitated can acquire through adverse possession, either by themselves or through the people who legally represent them.

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

ARTICLE 1291
(Usucapio by compossuidor)
The adverse possession by a shareholder in relation to the object of common possession also benefits the other shareholders.

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

ARTICLE 1293
(Excluded rights)
The following cannot be acquired by adverse possession:
a) Building easements not apparent;
b) Use and housing rights.

ARTICLE 1294
(Fair title and registration)
If the title is acquired and registered, the adverse possession takes place:
a) When the possession, in good faith, has lasted for ten years, counted from the date of registration;
b) When the tenure, even in bad faith, has lasted fifteen years, counted from the same date.

ARTICLE 1295
(Registration of mere possession)
1. In the absence of registration of the acquisition title, but registration of mere possession, the adverse possession takes place:
a) If the possession has continued for five years, counted from the date of registration, and is in good faith;
b) If the tenure has continued for ten years, counting from the same date, even if it is not in good faith.
2.The mere possession will only be registered in view of the final judgment, in which it is recognized that the owner has possessed peacefully and publicly for a period of not less than five years.

ARTICLE 1296
(Lack of registration)
In the absence of registration of title or mere possession, adverse possession can only take place after fifteen years, if the possession is in good faith, and twenty years, if it is in bad faith.

ARTICLE 1297
(Violent or hidden tenure)
If the possession has been constituted with violence or taken occult, the terms of the adverse possession will only begin to count as soon as the violence ceases or the possession becomes public.

 
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