In today’s article we are going to talk about what to do in the event of the occupation of a property that we are using. For example, if we have problems with the neighbour, because he has occupied, and included in his fence, part of our land.
The procedure to regain or retain possession
In the Spanish civil procedure law (LEC), this special procedure is regulated in its article 250.1.4º.
It is a summary procedure, that is, supposedly faster and focused only on recovering or retaining possession. We cannot deal with other matters, even if they are related to the occupation.
It is not even the right process to discuss who has a better right to use the property, or who is the actual owner. Only to discuss about possession.
And it will be processed as a verbal trial, which is faster than ordinary trials.
Legal basis for the claim
In this type of procedure, only the protection of possession is discussed. That is to say, that the person who had been possessing and enjoying the property or thing, has been disturbed or deprived of the possession, or use of the thing, etc.
Therefore, it must be proven that he / she was occupying or using the thing.
No, it will be discussed if we have a better or worse right than someone else to use the thing or property, or if we have its possession or not.
The legal basis is article 441 of the Spanish civil code, which states that no one can be violently stripped of a thing that he had been possessing. That is to say, no one can by force (even if he has a better right or if is the owner) take a thing from who has it.
Term to claim for the possession or occupation of a property
This type of legal procedure must be presented before the period of one year, since the events have occurred. This is what article 439 of the LEC says.
Examples of disturbances of possession protected by this procedure
The best known example is perhaps the occupation of a home or property by so-called ‘squatters.’ Although in reality this would be dealt with by the procedure contained in article 250.1.4º – second paragraph.
But also, it is common and can be protected by this procedure, the occupation of a property by a neighbour. For example, let’s imagine that the neighbour moves the fence that separates the properties. And he incorporates to his property, part of our plot, fencing it and including it in his side. And it is a plot that we have been enjoying and using ourselves (even if it is not ours). This seizure or removal of the use of land by force can be protected by this type of procedure. Although we are not the owners; as long as we were the ones who used it and had the possession.
If you have problems with your neighbour or have suffered the occupation of a property or plot by your neighbour, or similar. If someone is harming the use or possession over a thing or property. And if you need expert legal advice, contact us.
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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