Under the terms of Article 1287 of the Civil Code, “Possession of the right to property or other real rights of enjoyment, maintained for a certain period of time, allows the possessor, unless otherwise provided, to acquire the right whose exercise corresponds to his action: this is called usucaption”.
With regard to its effects, Article 1288 of the Civil Code states that “Once usucaption has been invoked, its effects go back to the date of the start of possession”.
Accordingly, Article 1316 of the Civil Code states that, with regard to the acquisition of property, “The right to property is acquired by contract, succession by death, usucaption, occupation, accession and other means provided for by law”, with the moment of acquisition, in the case of usucaption, occurring at the start of possession - see Article 1317(c) of the Civil Code.
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In order for this right to be recognized, it is necessary to have possession in one's own name (with corpus and animus) and for a certain period of time to elapse.
This method of acquisition can occur either in immovable property - with the exception of non-apparent property easements and rights of use and habitation, or in movable property - see art. 1293 ss and 1298 ss of the Civil Code.
With regard to the period required for the right of ownership to be recognized, various circumstances must be taken into account.
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Thus, with regard to immovable property, if there is a title of acquisition and registration, if it is in good faith, ten years from the date of registration will suffice and, if it is in bad faith, fifteen years from the date of registration. - cfr. art. 1294 C.C..
If there is a registration of mere possession (“a justification process, under the terms of the registration law, in which it is recognized that the possessor has possessed peacefully and publicly for a period of not less than five years”), if you are in good faith, it will be enough for possession to have occurred five years after registration and if you are not in good faith, ten years must have elapsed. - cfr. art. 1295 C.C..
In the absence of any registration, if the possessor is in good faith, fifteen years must have elapsed and, if the possessor is in bad faith, ten years. - cfr. art. 1296 C.C..
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In the case of movable property subject to registration:
“a) If there is a title of acquisition and it is registered, when possession has lasted two years, if the possessor is in good faith, or four years, if he is in bad faith;
b) If there is no registration, when possession has lasted ten years, regardless of the possessor's good faith and the existence of a title”:
- cfr. art. 1299 C.C..
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In the case of movable property that is not subject to registration, if it is in good faith and based on just title, three years will suffice or, failing that, six years will have to elapse. - cfr. art. 1299 C.C..
As widely recognized (and thus decided by the Higher Courts), “Usucaption serves, moreover, to ‘legalize’ ‘illegal’ de facto situations, maintained over long periods of time, including even the illegitimate or illicit appropriation of a thing. “ and its justification lies in safeguarding ‘interests of public order, linked to legal certainty, definition, stability and security, making it possible to harmonize the law with reality.’ - see Judgment of the Supreme Court of Justice handed down in case 1578/11.9TBVNG.P1.S1, dated 06-04-2017, and Judgment of the Lisbon Court of Appeal, handed down in case 163/20.9T8VLS.A-L1-7, dated 09-11-2021.
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It should also be stressed that this is a right that prevails and can be recognized, even if it originates from prohibited transactions, either through illegal subdivisions or through unregistered building divisions that violate the minimum limits of the cultural unit (and thus prevent it from being divided) - cfr. Judgments of the Supreme Court of Justice in cases 916/18.8T8STB.E1.S2, dated 30-05-2019, 7601/16.3T8STB.E1.S1, dated 12-07-2018, and 1578/11.9TBVNG.P1.S1, dated 06-04-2017.
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With regard to its recognition, this can be done through the courts - by filing a lawsuit or in the context of a lawsuit, when there is a situation of litigation (otherwise there will be no lack of interest in acting) - see Judgment of the Coimbra Court of Appeal, handed down in case 24/08. 0TBSEI.C1, dated 19-10-2010; or through the extrajudicial route, when there is no litigation, and within the scope of a “process of justification of rights” taking place at the Land Registry Office, or through a notarial deed of justification. - cfr. arts. 116 ss of the Land Registry Code.
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