Usucaption, have you heard of it? This term is related to the transfer of ownership of an asset, such as real estate, for example. 

How can one benefit from adverse possession, or how can one initiate an adverse possession process? Find out everything throughout this article. 

What is adverse possession?

Usucaption – also known as "acquisitive prescription" – is the legal mechanism by which one acquires the right of ownership (or another real right of enjoyment, such as usufruct or servitude) over a property, by virtue of prolonged, uninterrupted and peaceful possession, during the period established by law.

What are the types of adverse possession?

The law does not use specific names for each "type" of adverse possession, as is the case in other legal systems. Instead, it considers that acquisition by adverse possession can occur in a general way (without good faith and without just title) or in a special way (with good faith and just title), applying different time periods depending on the case. Essentially, we can distinguish:

1. Adverse Possession of Real Estate
   • In good faith and with just cause.If the possessor legitimately believes they are the owner (good faith) and has a document or transaction that appears to validly transfer the property (just title), the period for acquiring ownership by adverse possession is 10 years.
   • Without good faith or without just cause.Even if the possessor knows that he is not the rightful owner or does not have a valid title, he can acquire property through adverse possession, but the time period increases to 20 years.
2. Adverse possession of movable property.
   • In good faith and with just cause.The deadline is 3 years.
   • Without good faith or without just cause.The general term is 10 years.

What is the minimum time required to be entitled to adverse possession?

In Portugal, the shortest period stipulated by law is 3 years and applies to the acquisition of movable property when there is good faith and just title.

For real estate, the minimum period is 10 years, also in the case of possession in good faith and with just title.

What law governs adverse possession?

O Article 1287 of the Civil Code It explicitly states that if there is nothing to contradict this option, a person can own an asset if they have been using it for a long time.

The law also determines issues such as the time a person can take to acquire ownership through adverse possession, starting from the moment the person took possession of the property. 

What is the difference between possession and ownership?

Although they may look alike, possession Ownership and possession are not the same thing. Possession is a lesser variable of ownership, where the owner and the possessor are different people.

Possession, when maintained for a long period of time, leads to ownership, as happens in adverse possession. 

What are the requirements to apply for adverse possession?

In order to claim adverse possession (acquisitive prescription), it is essential to fulfill the following requirements:

1. Peaceful, Public, and Uninterrupted Possession
   • Possession cannot be exercised through violence or in a hidden manner. It must be recognized by all, without effective opposition from the true owner or third parties, and maintained continuously, without interruptions that cause the term to cease or be suspended.
2. Owner's intent (or holder of another real right)
   • It is essential that the possessor act as if they were truly the owner, assuming responsibilities, paying taxes (if applicable), taking care of the property, and enjoying it with the freedom of an owner.
3. Expiration of the Legal Deadline
   • The timeframe varies depending on the nature of the asset (real estate or personal property) and whether or not there is good faith and a valid title.
   • Real estateThe minimum term can be 10 years (if there is good faith and just title) or 20 years (if there is not).
   • Movable propertyThe minimum term can be 3 years (if there is good faith and just title) or 10 years (if there is not).
4. Good faith and just title (when applicable to shorten the term)
   • Good faithThe possessor genuinely believes that he or she is the rightful owner.
   • Just titleThere is a document or contract that, in principle, would be valid for transferring ownership (for example, a purchase and sale agreement), but which has some formal defect or has not been properly registered.
5. Proof of Possession and Compliance with Deadlines
   • For adverse possession to be recognized, it is necessary to gather and present evidence (testimonies, receipts, tax payment documents, photographs, etc.) that demonstrate prolonged, public, and uninterrupted possession during the required period.
6. Judicial or Notarial Acknowledgment
   • Although acquisition by the passage of time occurs by force of law, in practice it is common to resort to a judicial process (action for recognition of usucaption) or a notarial procedure to formalize the situation and obtain the declaration of usucaption. This declaration will then allow the right to be registered in the Land Registry (or the corresponding registry, in the case of movable property).

How do I initiate the adverse possession process?

In order to initiate a usucaption process, one must go to the registry office and present the necessary documents for the process. 

How long does it take for a property to be acquired through adverse possession?

The time frame for initiating the adverse possession process is 20 years. 

Documents required for adverse possession.

Floor plans of the property, rental documents, maps, witness statements, and photographic records are the essential documentation to present in case of adverse possession. 

Adverse possession of urban property: how to proceed?

To initiate a usucaption process, the interested party must go to a notary's office and follow these steps:

• Submit the necessary documentation;
• Consult a lawyer.

Then, a real estate expert He will be called in to carry out the evaluation. If the court finds that the requirements reported by the experts are met, it will issue a ruling. 

How to prove possession for adverse possession purposes?

In order to obtain ownership of a property through adverse possession, it is essential to prove this situation. To do so, there are documents that must be presented:

• Witness statements;
• Photographs;
• Proof of payment of taxes;
• Receipts for expenses related to property improvements;
• Between others. 

How many years does it take to be entitled to adverse possession?

In order to be entitled to adverse possession in Portugal, you have to wait at least 20 years in the same property. 

How to claim adverse possession?

Usucaption exists if someone has possession of some property for a specified period of time. 

How to annul a deed of adverse possession?

A deed of adverse possession can be annulled by the property owner or by another person with an interest in the property. To expedite the legal process, it is advisable to contact a lawyer. 

How much does it cost to claim ownership through adverse possession?

The cost of an adverse possession lawsuit is not fixed. However, it varies between 10% and 30% of the value of a property. 

What are the time limits for challenging adverse possession?

There is no time limit for challenging adverse possession. This can be done before or after the adverse possession is registered in the registry. land registry. 

How can a lawyer help in the adverse possession process?

A lawyer can play a key role throughout the adverse possession process. This professional assists in situations such as the dissolution of an adverse possession deed, or even if someone wants to initiate an adverse possession process.

No Lawyers in Braga It has at its disposal legal professionals specialized in real estate law, in order to advise and help its clients fight for their rights. 

Conclusion 

Usucaption is a term that explains a situation where someone enjoys the use of property for a long period of time and can become the legal owner of that same property.

To initiate a usucaption process, the interested party must go to a notary's office and gather documentation such as proof of expenses related to the property, or witness statements. This is because usucaption occurs in situations where the person who enjoys the property behaves as its owner, making investments in its renovation, for example.