The mere passage of time, coupled with the inaction of those who could assert a legal claim but fail to do so, can establish rights in favor of the person possessing a property as if they were the owner. This principle is outlined in the Spanish Civil Code, which provides for usucapion, or acquisitive prescription, as a means of acquiring ownership and other real rights (sections 1940 et seq.). In a recent ruling, Judgment 628/2024 of May 8, First Chamber of the Supreme Court, the Spanish High Court resolved a case in which usucapion applied to a terrace classified as a common element according to the constitutive deed of horizontal property, as well as to storage rooms that were designated as inseparable appurtenances of other apartments under the same deed.
The Supreme Court found that all the necessary elements for ordinary usucapion, which requires peaceful and uninterrupted possession for ten years, along with good faith and a fair title, were present in the case:
– Good faith and fair title: The Court acknowledged both elements, stating that “the reason the defendant did not acquire ownership of the terrace subject to the contract signed on August 1, 1990, with the builder, is that, when the work was completed, the builder could not transfer ownership to the defendant, as he lacked the authority to dispose of that area due to it being a common element under the amendments made to the constitutive deed after the sale (…) The builder’s lack of authority to dispose of the property does not render the contract void (…) This lack of authority can be remedied through usucapion, provided all the requirements are met.” Furthermore, “in these circumstances, it is reasonable to believe that the defendant could have trusted in the builder’s title and that the builder could have conveyed ownership to him (v. section 1950 of the Spanish Civil Code).”
– Common element status does not preclude usucapion: The Supreme Court held that being the terrace classified as a common element does not prevent its acquisition by usucapion, as it is a “common element by designation,” one that is defined as such solely in the constitutive deed or by unanimous agreement of the community of owners, and which is not essential for the use and enjoyment of the other units in the building.
– Inseparable appurtenances: The Supreme Court also found that the designation of the storage rooms as inseparable appurtenances in the constitutive deed did not obstruct usucapion. This designation was made in an amendment dated June 24, 1991, while originally, they were part of the property sold to the defendant by the builder in 1990. Moreover, the segregation of appurtenances is not impossible, as it can be done with the authorization of the community of owners, as provided in the Law on Horizontal Property.
– Peaceful and uninterrupted possession: The Supreme Court noted that the defendant’s possession was peaceful, as it was not acquired through violence, and uninterrupted, as no legal actions were brought against him until July 2012, more than ten years after he began possessing the property. Furthermore, the defendant possessed the property as an owner, attending community meetings, applying for building permits from the city council, and so on.
Based on these arguments, the Court declared the defendant the owner of the disputed elements and dismissed the vindicatory action brought against him.
