Usucaption

The word comes from the Latin, resulting from the union of two words “usu” and “capere”, i.e. to take by use.

It consists of acquiring ownership of an asset, i.e. becoming the effective owner of an asset, on the basis of your possession over a long period of time, if there is no dispute and it is generally understood that the asset belongs to you.

In other words, you have the right to invoke the usucaption of an asset, so you become the legal owner if you have had possession and use of that asset for a long period of time.

If the right of ownership is not exercised by the rightful owner, it lapses and passes to the person invoking usucaption.


Usucaption: Regulations in the Civil Code

Usucaption is regulated by the Civil Code in articles 1287 to 1301.

Its definition can be found in Article 1287, which states that: “possession of the right to property or other rights in rem of enjoyment, maintained for a certain period of time, allows the possessor, unless otherwise provided, to acquire the right to which its exercise corresponds: this is what is called usucaption.”

Once usucaption has been invoked, possession begins from the date of its commencement. However, it must be public and peaceful.

In other words, the property must be recognized by everyone as belonging to the possessor without generating any conflict. If you have owned a property since January 1, 2000 and have invoked usucaption after 20 years, the property is considered to have been yours since January 1, 2000, if there is no one to contest it.


The deadline for claiming depends on several factors

The deadline for invoking adverse possession, and thus becoming the owner of the property, varies depending on the type of property in question. That is, whether it is movable or immovable property, whether or not it has a title of acquisition and registration, and whether or not there is bad faith in invoking it.

It should be noted that to be in bad faith when invoking usucaption is to understand that the property whose possession you claim belongs to someone else, and to have started using it by taking advantage of the absence or ignorance of the real owner.

On the contrary, to be in good faith is to believe, with good reason, that the property has no legal owner.

Title deed means proof that the property has been sold or donated to you. The most common reason for the absence of a title deed is the fact that in the past, deals were often made purely verbally, such as purchases and sales, donations and partitions.

The property must be registered at the relevant registry office after it has been purchased. However, this may not have happened due to various circumstances.

It should be noted, for example, that property registration only became compulsory in 1974, so many properties have no land registry and many are missing from the matrix. There are also incomplete registers, so the title deed may mention a seller who is not listed as the owner in the property register.


Usucaption of real estate

For immovable property that has a title deed and registration, usucaption takes place when possession in good faith has lasted 10 years from the date of registration. If there is bad faith, the period is 15 years (Article 1294).

For property without a title of acquisition, i.e. a deed of acquisition, but only registration of mere possession, usucaption takes place after 5 years in the case of good faith and 10 years in the case of bad faith.
If there is no registration of title or mere possession, it happens after 15 or 20 years, depending on whether there is good faith or bad faith respectively.


Registering a property by invoking adverse possession - notarial deed of justification

If you don't have a deed proving that you own the property, you won't be able to register it in your name. In other words, you cannot register the acquisition of the property in your favor. And if the property is not registered in your name, you cannot, for example, sell it, mortgage it or rent it out.

You will therefore have to draw up a notarial deed of justification, and only with this document will you be able to register the property as yours.

This notarial deed of justification is therefore used to invoke adverse possession by those who have possession of a property in order to legitimize their right to ownership and do not have the documents to prove it.


It is most commonly applied in three situations:

The property is missing from the land registry, but exists in the tax office. The owner acquired it at least 20 years ago, but does not have the title deed.

The owner has the purchase deed, but the property is registered at the registry office in favor of someone other than the person who sold it and does not have proof of the intermediate transaction. With the notarial deed of justification, the so-called resumption of successive ownership will take place and possession will be legitimized.

The owner acquired the land purely verbally from someone other than the person listed in the land registry, who in turn also passed it on verbally to the person who sold it to him. In this case there is no formal title either, but the deed of justification establishes successive ownership in the various acquisitions.

Once you have the notarial deed of justification, you can register the property in your name at a land registry office. The same applies to movable property with the necessary adaptations.


Land and inheritances without the authorization of heirs are the most common cases of usucaption

As land or rustic buildings are immovable assets for which there is often no land registry, they are the assets where usucaption is most commonly applied. Also, in cases of inheritance where the deed for the qualification of heirs has not been drawn up in due time, usucaption becomes an expeditious way for heirs to legalize possession of the property.


There is no usucaption in rented or borrowed property

If you live in a house rented or lent to you by a friend, or if you use the car a friend has lent you, you can never take possession of that property, regardless of how long you use it. This is because there is a written (in the case of a lease) or verbal (in the case of a loan) contract that makes it legally impossible to do so.


Reversing the situation

If someone has unlawfully claimed usucaption over your property (movable or immovable), you can take legal action and ask for it to be reversed in your favor. In any case, we always suggest that you consult a lawyer you trust to clarify these and other matters.






Source: supercasa.pt
Legislação e Finanças