SUMMARY OF THE ARTICLE
1.- Possession and ownership are not the same. Spanish Civil Code.
In Spain, the law protects whoever is actually using a piece of land against acts of dispossession, regardless of who actually owns it. In other words, if your possession is disturbed, you can reclaim it quickly, without first needing to argue over ownership.
2.- The specific case.
A client had been using, without opposition, a strip of land adjoining her property for more than 20 years, for parking and for the septic tank. The neighbouring company unilaterally built a wall and fencing that prevented her from continuing to access that area.
3.- The Court Ruling.
Our firm filed a legal claim, and the Court has ultimately ruled in favour of our client, ordering the defendant to remove the wall and return possession of the land to her, with costs awarded against the defendant.
It is quite common, on many adjoining plots and older properties, for a strip of land to be used peacefully for years, without there being a fully clear legal boundary. What happens if, from one day to the next, the neighbour puts up a wall and prevents you from continuing to access that area? In this week’s article we look at a new court success in which our client was forced to take action to regain possession of land she had been using since 2004, after a neighbour built a wall and put up a fence.
Possession and Ownership. Two different legal debates.
In Spain there is a legal action, regulated under article 250-4 of the Spanish Civil Procedure Law, designed precisely to protect the de facto possessor against acts of dispossession. The key point is that this procedure does not examine questions of ownership. It only looks at who was actually using the land.
Art. 446 C.C. “Every possessor has the right to be respected in his possession; and should he be disturbed therein, he must be protected or restored to such possession by the means established by the procedural laws.”
For this action to succeed, without entering into any debate over legal title to the land, several requirements must be met, which are that::
.- An established de facto possession exists.
.- An act of dispossession or disturbance has taken place.
.- Such act is attributable to the defendant.
.- No more than one year has elapsed since it occurred.
The case. Peaceful use for years. Unilateral construction of a wall by the neighbour.
Our client had been using a strip of land adjoining her property for more than 20 years. She used it to park her vehicle and for her home’s septic tank. This was a fact known to neighbours and even to the administrator of the neighbouring company. However, without any prior notice, the defendant company built a wall and fencing that prevented her from continuing to access that area. This forced our client to bring legal proceedings.
The ruling: possession proven, wall ordered to be removed.
The defendant’s case focused largely on disputing who actually owned the land. It submitted an expert report in an attempt to prove that it was the owner of the land in dispute. However, in its ruling, the Court did not examine these arguments, recalling that in this type of action the only relevant matter is possession. Several witnesses confirmed that our client and her family had been regularly using the area for years. On the strength of this evidence, the Court found possession to be proven and ordered the defendant to remove the wall at its own expense. Restoring the land to its previous condition, with costs awarded against the defendant. You can check the complete ruling, by clicking HERE.
Conclusion.
Knowing the law before acting is essential. When there is a dispute over who actually owns a piece of land, taking the law into your own hands can prove very costly. At White-Baos Lawyers, we specialise in real estate and neighbour disputes. If you wish to regain possession of land that has been disturbed, or if you believe a neighbour is using part of your property, do not hesitate to contact us for expert legal advice.
The information provided in this article is not intended to be legal advice but merely conveys information relating to legal issues.
Carlos Baos (Lawyer)
White & Baos.
Tel: +34 966 426 185
E-mail: info@white-baos.com
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