In this article we will explain whether it is possible to claim ownership against the owner of a property at the land register. We will discuss how the use of the property can serve this purpose. In addition, we will discuss the problems that we encounter when we try to claim against the owner of the property.
In previous articles we have told you what usucapion is and the types of usucapion that exist.
Remembering what we commented in previous articles, there is a type of usucapion where the person who is in possession of the property does not appear as the registered owner. When we want to acquire this property, a problem arises: the possessor and the registered owner are not the same person. That is to say: we have to claim against the registered owner.
FIRST PROBLEM: JUDICIAL RECOGNITION
The only way to recognise the ownership by means of the possession against the registered owner is by means of a court declaratory action of ownership. In other words, by filing a law claim in court. This entails a significant cost in terms of time, as the preparation of documentary evidence in the claim is complex. It is necessary to justify continuous possession for as long as it is claimed.
For example, let us suppose that we wish to acquire a property by usucapion contra tabulas – that is, against the registered owner – and that we do not have a title. The time we have to justify is 30 years of uninterrupted possession. Therefore, it is necessary to prove that we have been in possession for all these years. By this we mean: proof with electricity, water and gas bills. We can also justify it with rental contracts, payment of IBI or rubbish collection taxes, etc.
However, as we have said, the justification is complex.
SECOND PROBLEM: NOTIFYING THE TITLEHOLDERS
Suppose we have been using the property for a long time. To this problem must be added the fact that, on many occasions, and in order to avoid the defencelessness of the persons who appear as owners in the land registry, they must be notified of the existence of the court procedure. However, very often these persons are missing. For this reason it is very difficult to contact them or their heirs.
Some clients ask us whether it is possible to acquire the property through registry proceedings or notarial proceedings. In cases of acquiring ownership against the registered owner through continued use this is not possible, as there has to be a prior recognition of the owner by a court judgement.
THIRD PROBLEM: REGISTRATION
Let us assume that we already have a favourable judgement or court decision, in which the acquisition of the property by continuous use is determined against the registered owner. In this situation, and in order for it to have real effectiveness, the judgement must be registered.
Sometimes, the registers deny registration in favour of the new owner. As the registrars, who are in charge of registering the new ownership, could allege that the previous registered owners, are defenceless (they did not have the possibility of defending themselves); and refuse the registration.
In other cases, the registrars argue that the claim only requested the declaration of ownership by the claimant, but did not request the rectification of the land registry in order to cancel the contradictory registration.
Claims to reclaim ownership of a property against the registered owner require extensive and dedicated study. If this is your case, please do not hesitate to consult us and we will help you.
The information provided in this article is not intended to be legal advice, but merely conveys information relating to legal matters.
Carlos Baos (Lawyer)
White & Baos.
Tel: +34 966 426 185
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