My wife and I own a house in Pedreguer, Alicante. We now have a new neighbour who purchased the plot next to ours and has put up a fence that occupies part of our plot. We have asked him in different occasions to change it in order to make it legally but he does not pay attention to our requests and we have decided to claim legally against him. What should we do? Can you please advice?
To be able to claim against your neighbour for your piece of land occupied by him you must do it through a Court Procedure or legal action called ACT TO RESTORE (ACCION REIVINDICATORIA) under Spanish Law; which refers to border disputes and claiming ownership of a disputed area or region. In this sense it will be fundamental for you to be able to identify as yours, the claimed portion of land.
The Case Law states that in order to be able to file this type of claim requesting that land occupied by someone else is restored it is absolutely necessary to identity both plots as well as the real existing boundaries between them. Only then, can the portion occupied by the neighbour be clearly identified and claimed.
Therefore if the boundaries of both plots are not clear and identified to start; we must first of all identify them, this can be done by using a topographer, checking the Town Hall plans of the plots, cadastral plans, etc.
So, if this is the case, on the claim to be presented, you will request two different actions:
1) A legal action to determine the real boundaries ( ACCION DE DESLINDE):where you should be able to prove to the court, what are the correct boundaries of the plots, basing your arguments on the said evidence, such as topographic report, etc.
2) You will be able to request from the court (once the real boundaries are confirmed), to RESTORE the plot illegally occupied (ACCION REIVINDICATORIA).
In this respect, the Spanish Supreme Court has set by a Decree Court Order No. 524/2000 of May 25th. which on its FIRST principle of law states the absolute and undoubted identification of the plots is needed when claiming in this kind of court actions . The unequivocal identification of the plot to be claimed is a sine qua non condition and should be carried out precisely from its 4 cardinal points; this being an essential requirement to thrive any of the legal actions derived from article 348 of the Spanish Civil Code. The following are court orders confirming this: Court Order of July 16th. 1990, March 5th.1991, December 1st. 1993, among others
Also the Alicante County Court (Audiencia Provincial) (Section 6th.) on Decision number 121/2004 of February 25th states: It should be agreed with the court of first instance when it establishes that there is a reasonable doubt in the boundaries dividing the plots under claim and the portion of the land being claimed by the parties as their own has not been identified.
Therefore since the boundaries of the plot to be restored are not perfectly set by the claimant, the claim is dismissed with conviction of costs for the claimant.
Should any reader find himself or herself in this situation or similar please do not hesitate to contact us and the appropriate advice will be provided.
The information provided in this article is not intended to be legal advice, but merely conveys general information related to legal issues.
White & Baos
Tel: +34 966 426 185
White & Baos 2011 – All rights reserved