What is adverse possession?

From the Latin usucapão, usucapion is the acquisition of a right or property through its exercise under the conditions and deadlines established by law. adverse possession, also known as acquisitive prescription , is a way of accessing the ownership of a thing through the continued possession of rights in rem during the time established by legislation.

Another element that should be clear in relation to adverse possession is that it is retroactive. And it is considered that, after the deadline, the acquisition of the right took place at the moment it started. In order for adverse possession to exist, there can be no action against the possession in question by the affected party. The existence of adverse possession can be justified by two theories: the objective theory and the subjective theory.

The objective theory maintains that the foundation of usucapión lies in granting security to legal relationships by consolidating apparent possession. This theory, therefore, seeks to maintain the status quo of ownership. The subjective theory, on the other hand, justifies the adverse possession of the abandonment or waiver of the right in rem that the holder has, since he does not exercise any defense action against the possession of another. The problem with this position is that, when the holder demonstrates that there is no will to renounce, the adverse possession is immediately invalidated. It is interesting to note, in addition to everything that has been said so far, that there are two clearly differentiated types of adverse possession. Thus, on the one hand, we find the ordinary summons, which is identified by demanding a fair title for the time established by law and also in good faith. It is important to make it clear that the aforementioned title must be valid and true. And you also have to be able to prove it, since at no time is it presumed. And, on the other hand, there is the extraordinary, which does not require either of the two elements mentioned above. That is, neither the title nor in good faith. However, it should not be forgotten that there are other types of adverse possession. So, for example, based on what the interruption of possession is, the Civil Code divides it into two groups: Civil interruption. This is what occurs as a result of the court summons made to the possessor. An act of conciliation can also cause this type of interruption, as well as the recognition by the holder of the right of holder. Natural disturbance. It is the one that occurs when possession ceases for more than one year, regardless of the causes that gave rise to this circumstance. The person who acquires or claims a right through adverse possession is known as usucapiente. This can aspire to adverse possession of the common acquisitive prescription (when it acts in good faith and with just title) or extraordinary acquisitive prescription (does not require good faith or fair title, since it is based only on possession).

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