UNIT 1: CONCEPTS, RULES AND

PRINCIPLES: REAL RIGHTS. TYPES OPEN

(OR CLOSED) LIST. POSSESSION.
1- PROPERTY LAW

EUROPEAN LAW
You need to know 2 legal systems, we will have to apply one or the other. There’s also a
european regulation, but we dont have a uniform system. There are a few Directives that deal
with property issues:

• Directive 93/7/EEC dealing with the return of cultural objects from other Member
States
• Directive 2000/35/EC in the field of European contract law to combat late payments in
commercial transactions
• Directive 1346/2000/EC dealing with cross-border insolvency procedures Directive
2002/47/EC on Financial Collateral Agreements
• Directive 2003/87/EC establishing a scheme for greenhouse gas emission allowance
trading within EU (also called emission rights or pollution rights)
• Directive 2009/122/EC on the protection of consumers in respect to timeshare
• Possible Legal Developments (legislative drafts):
o Euro-hypothec (new common security within EU member states)
o Draft Common Frame of Reference (e.g. acquisition & transfer of rights)

Public law like the enviromental law or coastal.

Property is somewhere in between, it’s also
influenced by public law.

SPANISH LAW
Property law is not uniform in Spain. It does not apply everywhere, there are two sets of
regulations: State-wide legislation and the ones applied exclusively in a certain territory (like
Catalan law).

Different statutes that deal with property law:

• CIVIL CODE (CC/CCC)

• A few special civil law acts (civil statutes, like Ley Hipotecaria, Ley de Arrendamientos
Urbanos)
 • Other regulatory and environmental law acts.

The original source can be found in the Spanish Civil Code (1889). In 2006 it was created the
Catalan Civil Code by the Catalan Parlament. The rules that say that the law that can be applied
depends on WHERE THE OBJECT IS LOCATED (a house, a plot of land, if it’s located in BCN, we
will have to apply the Catalan Civil Law). LEX REI SITAE RULE.

The main regulations on real estate law are spread out throughout the Spanish legislation in
special civil acts (LH, LM) and in sectorial acts (the most relevant are: Coastal Act, Agrarian Acts
and Town Planning Acts or Soil Act).

2- REAL RIGHTS

CONCEPT
We call it real because it refers to property, land, it comes from Latin “res rei”, which means
“thing”. We have similar expresions: “Derechos Reales”, “Droit de biens”, “Sachenrecht”, “Land
Law” (UK), “Property Law” (USA).

This right can be in physical objects but not (for now) in digital objects.

It’s a right that can be exercised erga omnes and is thus enforceable vis-a-vis third parties
(against any person). LEGAL PRESUMPTION IF SOMEONE THAT POSSESS AN OBJECT IS THE
OWNER OF IT. This means that the owner of a real right is entitled to recover (acción
reivindicatoria) his property from the current wrongful possessor (who holds the object).

NUMERUS CLAUSUS AND NUMERUS APERTUS OF REAL RIGHTS

In order for these rights to be opposable, THEY HAVE TO BE CLEARLY STIPULATED IN THE
CODE. In Spain we have a specific number of different types of real rights (RR), although the
Parliament (Cortes Generales or Regional Parliaments) is free to create new types of real rights
(NUMERUS APERTUS). It cannot be created via consent between two persons (like a contract).
We know in advance the types of RR. There are some professors (Henry Smith, Henry Hansmann,
Bram Akkermans) that say that numerus clausus is more efficient because it offers a great deal
of security to the financial institutions.

In the Cortes Generales: Timesharing (derecho real de aprovechamiento por turnos)

The Catalan Parliament: Temporal ownership/ Shared ownership. A new type of
tenancy.

BASIC PRINCIPLES

PRINCIPLE OF SPECIALTY
The right upon the thing must be distinguished of any other object, they relate to specified
things ut singuli and not to a group of things as a such. This element that exists, in reality, belongs
to someone, how do we know that? We record it in a REGISTER, with a list of property and the
owner. In Spain does not exist an obligation to register all objects, it can be done voluntarily
but not all objects can be recorded.
 E.g. Registro de Propiedad (Land Register) and Registro de Bienes Muebles (Movable
Goods Register). In order to have this right, they need to be specified.

THE PRINCIPLE OF UNITY

If a property has become part of another thing it loses its existence as a separate object of
property and is automatically subjected to the property over the whole thing.

3- TYPES OF REAL RIGHTS

2 different sets:

• RIGHT OF OWNERSHIP (dominium)

• LIMITED REAL RIGHTS, they are not considered Right of Ownership in UK law called
“Legal Interests” or in Latin “iura in re aliena” (right in a thing that belongs to another
person).

If the owner has created a real right on his property, the other person that holds this right has
the right to use it. The previous owner is now called “naked owner or bare owner” (nudo
propietario, like an usufruct).

RIGHT OF OWNERSHIP :

• Ownership (Freehold)
• Undivided Ordinary Ownership (Community and Joint Ownership)
• Horizontal Property (Commonhold or Condominium). New system. It’s regulated in the
Spanish and Catalan Civil Code. This type of property is known as “condominium” in USA
(false friend, in Spanish a “condominio” is when 2 persons share a property) in UK its
called commonhold.
• Other Fragmented Property Schemes: Timesharing;
Temporary Ownership; Shared Ownership.

RIGHTS IN RE ALIENA (Bandle of sticks metaphoric).

• Rights of Use or Enjoyment.

• Security Rights (derechos de garantia).
• Rights of preferential acquisition or Pre-emption

RIGHT OF OWNERSHIP
Refers to the rights upon an object in the most absolute manner. The owner can do whatever
he/she wants on the object (sell, destroy, modify…). This “Despotic Owner” can create new rights
in his/her possession. The right will pass to the prospective heirs of the deceased owner. It’s the
most complete of all real rights and It is the sum of all real rights that may exist with regard to
a thing.
CONCEPTUAL FEATURES OF THE DIFFERENT FORMS OF THE RIGHT OF
OWNERSHIP
The RIGHT OF OWNERSHIP (or Freehold) is the most complete legal right a person may have
over land or over chattels (movable goods). It includes:

• The right of exclusive possession and free disposal.

• The right to encumber (gravar) the property by transferring some lesser right to other
people (third parties).
• The right to alter the use of the land.
• The right to renounce rights over the land.

The UNDIVIDED ORDINARY OWNERSHIP (Comunidad indivisa de bienes) is a type of property

that falls upon one object or right and involves more than one owner. There are as many rights
as there are co-owners, in a way that the right of each co-owner is limited by the rights of te
other co-owners in the community. In this way several persons can be “joint owners”
(copropietarios) of one piece of real property.

Provisions: Art. 392-406 CC / 552-1 to 552-12 CCCat

The HORIZONTAL PROPERTY (HP) is a property scheme that is known in other countries as
Commonhold (UK), Condominium (USA, false friend!), “Strata Property” (Canada) or “Sectorial
Title Property”. This type of property is governed by a specific legal regime of property in
condominium in which there are several owners that are part of a special community. Each
owner has:

• An exclusive right of ownership over the private elements (apartment).

• And a right of joint ownership with the other owners over the common elements of the
building (soil, structure, walls, roof, stairs, elevator, entrance hall…).

The basis Deed (título constitutivo) determines which parts of the building are common and
which are private. This type of property is managed according to the Bye-laws (estatutos) of the
building. As a last resort the rules governing the undivided ordinary community can be applied.

Applicable rules: LPH, CCCat, it depends on the place where the property is located.

In TIME-SHARING, the owners in the community by time-sharing have the right to enjoy the
property on which it falls that specific legal regime by discontinuous and periodic time units
(i.e. one week or one month) It is a “limited real right” [and in Catalonia can be also a form of
“community ownership”] that enables multiple purchasers to buy undivided interests in housing
units (usually in a resort condominium) with a right to use the dwelling for a fixed time period.

E.g. 12 individuals could own equal, undivided interests in one vacation home
condominium unit with the right to each of them to use the apartment during a specific
month every year (i.e. July/August).

Regulation: 2012 Spanish Act (it governs the contract elements, and it is a limited real
right) Art. 554-1 to 554-12 Cat CC (it is both a limited real right ans also a special
community type)

SECTORIAL TITLES AND OTHER FRAGMENTED PROPERTY SCHEMES

The PARTIAL OWNERSHIP SYSTEM is another type of property right (newly created by a 2015
Catalan Act). In a shared ownership scheme, a person purchases a portion of a property (say,
25%) with a down payment and mortgage, and then buys more shares as he can afford to,
eventually getting to full ownership. - This person pays rent to the seller exclusively on the part
he does not yet own. The seller’s only right is to collect rent. The seller cannot decide anything
related to the property. The buyer has all rights on the piece of property but has to pay all taxes
and other costs. There are two types

1. The temporary property right is granted to the holder for a specific period of time,
which is set by contract, and once completed this period the asset goes back to the
original owner or his/her successors. Art. 547-1 to 547-10 Cat CC

2. Shared ownership. Under this scheme, after an initial purchase the buyer will
progressively acquire the remaining rights on the property from the formal owner (the
seller). Art. 556-1 to 556-12 Cat CC

LIMITED REAL RIGHTS

They are the legal interests of the title holder that are vested on the right of ownership of
another person.

LIMITED REAL RIGHTS TYPES

1. RIGHTS OF USE OR ENJOYMENT. These are rights that give to their holder a right of use
(or enjoyment) of a thing and to acquire the fruits and revenues produced by the thing
The titleholder is allowed to possess the property and to extract the benefits arising
from its use. Basic type: the right of usufruct.

2. SECURITY RIGHTS (or Guarantee interests). These are real rights used to secure
obligations These rights usually have to be recorded at the Property Registry. Example:
a mortgage on a house to secure a loan granted by a bank.

3. PRE-EMPTIONS (or Rights of First Acquisition)

a) “Voluntary” rights of first acquisition: These are rights of acquisition that have
been expressly agreed by the contracting parties. It grants the lessee the right
to purchase the currently leased property from the lessor (& owner).

Examples: right of option / right of first refusal (derecho de tanteo).

These rights are usually registered at the PROPERTY REGISTRY - if they have
not been recorded the rights will not the enforceable to third parties (who
purchased in good faith).

b) “Statutory” rights of first acquisition: Such “statutory rights” are not agreed by
the parties. They are established by a legal provision on behalf of one or more
persons.

Example: CC / LAU / Cat. Decree-Law 17/2019 & Decree-Law 1/2020.

 Keep in mind that there is no need for recording the statutory right of first
acquisition in the Land Registry since it has been established by legal provision.

4. (In rem) CHARGES (or “cargas reales”) They cannot be rightly considered a type a real
right (though it affects an immovable asset). It is the imposition of a “burden” (carga),
be it an obligation or a duty that the owner of the property has to fulfill regularly
according to the terms agreed by the parties in the contract.

Example: a money payment (pensión) The property (the object upon which the real
charge falls) serves as a guarantee of the payment.

RIGHTS OF USE
RIGHT OF USUFRUCT (right of lease, there is no proper translation in english): is the right to
enjoy an alien property with the obligation to preserve its form and substance, unless anything
else is stated in the law or in the constitutive title of the real right. It can be established on one
or mere persons who will be the beneficiary of the thing.

Basic provisions: Arts. 467-522 CC. arts. 561-1 a 561-37 CCCat.

A usufruct is a right in rem that confers on its holder enjoyment of a real property. The property
still belongs to the proper owner (aka bare or “naked owner”). The titleholder of the right of
usufruct is obliged to maintain the property in its original state (condition). The titleholder can
use it but he is not permitted to transform:

- The land (a field) into built property (a house)

- Commercial premises into an apartment

The titleholder of the right of usufruct is allowed to:

- Burden the estate with a charge

- Mortgage his right (but only for a limited period of time, which can not exceed
the duration of his right).

RIGHT OF MERE USE: This is the right to use another’s property in the way established in the
title of constitution, or in a way sufficient to attend the user’s needs and the needs of those
who live with him/her.

RIGHT OF HABITATION: Real right conferring temporarily on its right holder [habitacionista]
the right to use one or more rooms of a dwelling (belonging to another person) for a certain
period of time.

Basic provisions: Art. 523-529 CC Arts. 562-1 a 562-11 CC Cat.

RIGHT TO PARTIAL EXPLOTATION: This is a real right that allows the title holder:
 - To manage large tracts of rustic land in exchange of preserving the natural
landscape or resources (i.e. preserving the fauna and ecosystems)
- To set up advertising posters
- To use a balcony, a theater box or similar.

Basic provisions: Arts. 563-1 a 563-4 CC Cat.

RIGHT OF SERVITUDES (or Easements): A right of servitude is a right to enjoy the land of another
owner in the following way: right of way, right to light, right to a flow of water. A servitude is a
charge on someone’s land for the use of another owner’s land. The property charged with a
servitude is legally separated into two differents tenements:

- The dominant tenement (“predio dominante”) is the land owned by the

possessor of the easement.
- The servient tenement (“predio sirviente”) is the land over which the right is
enjoyed.

Servitudes can also be a “charge inherent to a site” or a legal curtailment of the right of
ownership: this is the case of the (servitude) “altius non tollendi”, which implies that a building
structure is not permitted to exceed a certain level as agreed by the parties). For example: I’d
like to enjoy the horizon’s views (of the mountains, the coastline, … ).

Servitudes (easements) may be established either by agreement or by legal provisions. The

establisment of a right of servitude grants the right of use of the encumbered portion of the land
(servient tenement).

Basic provisions: Art. 530-604 Arts. 566-1 a 566-13 CC Cat.

RIGHT OF SUPERFICIES: A building right is a right in rem that allows its holder to “own”
buildings, works or plantings erected on land belonging to another owner. This right can be
created by the owner of the land (individual or firm, or by the municipality and regional
government). This right can be established for a maximum duration of 99 years among private
parties (on public lands it lasts usually between 50 and 75 years). LIMITED REAL RIGHTS DO
NOT LAST LONGER THAN 99 YEARS!!

The right of superficies is is the right to use the soil either by cultivating it or by building on it
(or in the subsoil). The superficiary holder is the beneficiary of the land during a period of time.
Once the time has lapsed, usually the property will return to the bare owner of the land (unless
both parties stated on the constitutive deed that the property will be split, and distributed
among them).

Basic provisions: Land Law: Arts. 564-1 a 564-6 CC Cat. Administrative Law: On public
soil will apply both - the corresponding Regional Planning Laws (art. 171 DLeg - 2010
CATALAN ACT) - and the Royal Legislative Decree 7/2015 of 30.10.2015 (art. 53-54
RDLeg – SPANISH STATUTE).

RIGHT TO ERECT A NEW FLOOR (derecho de vuelo): The right of construction is the real right
over a building or edificable plot that allocates to someone the power to build one or more
floors over the charged/ encumbered property, and to take over ownership of the apartments
built on top of the building. It comprises also the right to build below the surface (also called
“derecho de subedificación”).
 Basic provisions: Art. 16.2 RH (art. 30.3 RH) Arts. 567-1 a 567-6 CC Cat.

EMPHYTEUSIS (/enficiusis/ or “censo enfitéutico”), old fashion real right that alows a person to
build in a property and just pays a portion of the value of the land and assumes the obligation
to pay rent up to 99 years. The right of emphyteusis allows a person to acquire a piece of land
from the seller - by paying a certain sum of money (on the spot), and also by agreeing to pay an
annual rent (or fruits) in addition to it. Today the “censo” involves the payment of a kind of
“ground rent” that has been agreed upon a contract (Deed or “documento público”) by two
parties, according to which

- The owner of a plot (“formal owner”, also called “censalista”) gives up the useful
ownership of the property (plot) to another person (“material owner”, also
called “censatario”), and
- The formal owner will receive a yearly rent from the material owner (for a
specific time up to 99 yrs)

Basic provisions: Art. 1605 CC Arts. 565-1 a 565-33 CC Cat.

Certain similarity winth the “Long Lease”. Today is rarely used in real estate transactions.
However, many thousands of century-old “censos” still exist (basically in Catalonia & Balearic
Islands), and they are not redeemed because it is expensive and the current owners
(“censatarios”) are usually not willing to pay for its price.

A long lease is a right in rem that confers on its holder enjoyment of a real property (usually a
piece of land or a urban lot) belonging to the granter (lessor) in consideration for a yearly
charge, called “canon”. This is a temporary right and if contracted can last up to 99 years. The
holder of the long lease right (lessee) may exercise all the rights attached to the enjoyment of
the real property to which they belong, provided that he does not reduce its value. The lessee
may rent the property out, or he can plant or build, he can also burden the property with a
charge, he can transfer his right, he can mortgage it, but he can do all these things only for the
duration of his own right (long lease), and no longer.

PRE-EMPTIONS
These rights can be established either by agreement or (on specific situations) by statutory
provisions. These are rights conferred upon a person for the preferential acquisition of property.
There are three types:

1. RIGHT OF FIRST REFUSAL

2. BUY-OUT RIGHT.
3. RIGHT OF OPTION
4. RIGHT OF REDEMPTION in the Contract of Sale that has been subjected to a “carta de
gràcia” clause by the contracting parties.

RIGHT OF FIRST REFUSAL (DERECHO DE TANTEO)

This right entitles specific person to acquire the property before a third party acquires it. It may
be enforced before the sale of the property, and the title holder has to pay the same amount
that this third party would have paid.

Basic provisions: Arts. 568-13 to 568-14 CC Cat.

THE BUY-OUT RIGHT (DERECHO DE RETRACTO)
This right entitles the holder to buy out an asset from a third party who has previously
purchased the asset (the piece of property). It can only be enforced when the property has
already been sold and the title holder has to pay to the buyer the same price that she paid for
the thing (to the seller).

Example: If the owner sells the asset to a third party without offering the titleholder the
opportunity to purchase it in the first place, then the holder can ask the court to reverse
the sale. - the holder is using a property right and the court will grant him/her the asset
by paying to the third party the same amount of money the latter paid for it. - as a result
the first sale is invalidated and the titleholder preemptive right will prevail.

Basic provisions: Arts. 568-15 CC Cat

RIGHT OF OPTION (DERECHO DE OPCIÓN)

Or call option is the right the owner gives to another person to acquire the property as long as
the latter pays the price agreed upon and fulfills the additional conditions established by deed.

Basic provisions: Arts. 568-8 to 568-12 CC Cat.

RIGHT OF REDEMPTION (DERECHO A REDIMIR)

The redemption takes place when the seller reserves the right to recover the asset that is sold
with the obligation of observing both what the law establishes and the conditions stipulated in
the contract.

Example: Someone (A) sells a piece of property to another person (B) under the
agreement that the seller (A) has the right to repurchase the property as long as he/she
(A) exercises his/her right within a specified time span and she hands over the sum of
money (that was stipulated in the contract) to the purchasor (B).

Basic provisions: Arts. 568-28 to 568-32 CC Cat. (derecho de redención en la venta a

carta de gracia)

THE “TORNERIA” RIGHT (LOCAL PREEMPTIVE RIGHT)

This is a statutory right that applies to specific properties in the Aran Valley: it includes the family
house and its premises both in rural land and in urban soil, except if it forms part of a
commercial or touristic explotation. The “torneria” right can be exercised by persons with
bonds of kinship in order to keep the property under the control of close relatives. The
preemptive right applies in the following scenario:

- In cases of sale or dation in payment, where the property is transferred to a

stranger or to a family member that falls beyond the fourth collateral degree.
- If the estate has belonged to a person with whom there exists a direct o blood
kinship for at least two or more generations (immediately prior to that of the
seller)

Basic provisions: It has its origin in a medieval royal privilege that dates back to 1313,
and is currently regulated in arts. 568-21 to 568-27 CC Cat.
REAL SECURITIES
Also called In rem securities or guarantee interests. This type of real right is very commonly
used in commercial transactions. We will devote an entire unit to deal with this issue, as well as
a seminar activity. Right now you only need to know that this type of real rights of guarantee
include:

• THE RIGHT OF RETENTION

• THE RIGHT OF PLEDGE
• THE RIGHT OF ANTICHRESIS
• THE RIGHT OF HYPOTHEC (commonly referred to as “MORTGAGE”)

RIGHT OF RETENTION
This real right allows possessors in good faith of a property (be it chattels or real estate)
belonging to another person who have to return it to another person (debtor) to retain/keep
in his power the possession of the thing as a guarantee until the debt is fully paid. There are
two types:

1. The right of retention on chattels (also called “mechanic’s lien”)

2. The right of retention on real estate (a previous written agreement is required)

Basic provisions: Art. 1871 CC Arts. 569-3 a 569-11 CC Cat.

PLEDGE
Pledge is a guarantee over movable goods (chattels). It requires:

- The transfer of possession of the charged property (from the debtor or another
person) to the creditor or to a third party.
- To shift the object of the guarantee to another person.

Basic provisions: Art. 1863-1873 CC Arts. 569-12 a 560-22 CC Cat. A non-shifting

pledge (prenda sin desplazamiento) is also possible if the pledge is granted upon specific
kinds of property and if it is recorded at the Registry of Movable Property.
Special regulation: 1954 Act LHMPSDP (Ley de Hipoteca Mobiliaria y Prenda sin
Desplazamiento de Posesión).

ANTICHRESIS
The right of antichresis can be agreed upon immovable property to secure the payment of an
obligation. The owner empowers the creditors to possess the property (either by themselves or
by a third party) and to collect the proceeds (rents) to apply them to the full payment (capital
+ interests) of the obligation that the antichresis secures. In case of non compliance with the
obligation guaranteed the antichretic creditor has legal recourse to force the sale of the
guarantee (and be paid from the proceeds obtained, also called “realization of the value
procedure”).

Basic provisions: Art. 1881-1886 CC Arts. 569-23 a 569-26 CC Cat.

HYPOTHEC (OR MORTGAGE).
A Hypothec is a real right guarantee over immovable property or immovable rights. It does not
require the transfer of possession of the charged property, but the right must be duly recorded
at the Land Registry to be valid. A movable hypothec is also available for specific kinds of goods
(such as airplanes, cars and machines).

Basic Regulation: Art. 1874 ss. CC Spain Mortgage Act (LH) Special types of hypothec
are regulated in Catalan Law: Arts. 569-27 a 569-42 CC Cat.

There are several types of mortgages. A mortgage is an ACCESSORY REAL RIGHT. Basically,
mortgage is accessory to a personal right, a right of credit. So mortgage depends on the
existence of a debt to be secured. A mortgage can be vested on a right or property, usufruct,
building right, or a long lease. In Spain, the bank usually requires the establishment of a
mortgage as security for financing the purchase of real estate. A mortgage is used as a security
right because it guarantees the repayment of a debt, since the creditor is entitled to sell the
encumbered property in the event of non payment by the debtor. A mortgage has to be vested
by a notary deed and will only exist once it has been recorded at the Property Registry. As from
this moment the mortgage shall be enforceable towards third parties (erga omnes).

POSSESSION

CONCEPT
Possession is the power in fact over a thing (or a right) that is exercised by a person. IT’S NOT
A REAL RIGHT. Possession of things (and rights) may be held in one of these two different
capacities

• AS AN OWNER, or
• AS A HOLDER OF THE THING (or right) –to preserve or enjoy it– while acknowledging
that ownership belongs to another person. This person is enjoying the object but in the
same time recognises that the right of ownership belongs to another person.

REGULATION
Article 521-1 (to art. 522-7) of the Catalan Civil Code
Article 430 (to art. 466) of the Spanish Civil Code

DISTINGUISHING BETWEEN NATURAL AND SIMPLE POSSESSION (ACCORDING

TO SPCC ONLY)
• NATURAL POSSESSION is the holding of a thing (or the enjoyment of a right) by a
person.
• SIMPLE POSSESSION is that same holding of the thing (or enjoyment of the right) joined
with the intention of having the thing (or right) as one’s own.

ACQUISITION OF POSSESSION
Possession is acquired:

a) When the possessor is subjecting the thing (or right) to the scope of their
power.
 b) When the thing or right has been made available to the new possessors, as
deduced from the legal relationship existing between the old and new
possessors.

Possession as a fact MUST BE OPEN, can’t be clandestine. Possession cannot be acquired with
violence (this is the case if the previous possessor is opposed to give the thing up). There is no
need of open possession if the object is recorded in a public register.

CAPACITY
All persons can acquire possession (as long as they have “natural capacity”). Note: Hovewer,
the 2006 NY Convention on the Rights of Persons with Disabilities (CRPD) prompted recent
domestic legal reforms (2021) that have definitely erased the traditional distinction between
“natural” and “juridical” capacity attributed to physical persons.

Possession is broadly protected in Spanish law. Possession is protected even if the person is not
entitled to possess (MERE POSSESSOR). Any exercise of factual control over a thing is
considered possession - as long as the possessor is acting with enough autonomy in the control
of the thing. The scope of possessory protection is expressed in these articles:

Art. 446 SpCC Every possessor has the right to be respected in his possession, and if he
is disturbed in it, he will be protected or be restituted in such possessions by the means
that the laws of procedure establish”.
Art. 441 SpCC Possession cannot be acquired by force while a possessor who opposes it
exists.

The possessor’s position is reinforced through several legal presumptions:

- Art. 459 SpCC: The presumption of “continuity in the possession”

- Art. 436 SpCC: The presumption of “continuity of the possessory title”
- Art. 448 SpCC: The presumption of “possessory legitimacy” in favor of the
possessor as owner
- Art. 434 SpCC: The pressumption of “good faith” of the possessor.

POSSESSORY ACTIONS WILL BE DECIDED BY COURTS THROUGH ORAL

PROCEEDINGS
Art. 250.1.4 LEC (Civil Legal Procedure Act) establishes that the possessory actions “seek the
summary protection of the possession of a property or a right, which can be brought by the
person who has been deprived of them or disturbed in their benefit”. The owner only has to
provide evidence about it’s title and it suffices.

POSSESSORY ACTIONS CAN ONLY BE BROUGHT WITHIN ONE YEAR OF THE

EVICTION
If the squatter has been less that 1 year in the flat, the owner can go to a SUMMARY
JUDGMENT. Art. 439.1 LEC states that “legal actions will not be admitted when they are
attempting to retain or recover the possession if they are brought after the period of one year
from the disturbance or the despoliation”.
The court will not enter into discussions about who is the person that has the right (or the title)
over the thing. This issue shall be resolved later on occasion of another legal proceeding. The
only aim of the summary trial is to restore the thing to the person who can bring evidence of
a better possession on the thing than that of the defendant.

The possessory action can be brought not only against the person who took possession of the
property, but also against later (actual) holders of the land. The plaintiff (actor) who exercises
the possessory action will be the owner. The defendant (demandado) will be a person who is
not entitled to the property.

EJECTMENT FOR PRECARIOUS POSSESSION (DESAHUCIO POR PRECARIO )

This action can be brought against any person that holds property without having a right to
actual possession. Not the situation of squatters.

a) Because his title is no longer effective (eg. expiration of lease or of usufruct)

b) Or because it depended on the mere tolerance of the titleholder (eg. my
daughter was using my second residence for a certain period of time).

Here the plaintiff in ejection is not a deprived possessor, but one who voluntarily yielded the
control of the property and now wishes to recover immediate possession of his/her property.

EJECTMENT OF SQUATTERS (“OKUPAS”)

Or express ejectment (deshaucio express) stablished by a law of 2018 with a legal mecanism to
eject squatters, and it’s a summary procedure. A squatter occupies the dwelling without the
owner’s consent. The owner has a specific claim (interdicto) against the squatter. It takes place
at the First Instance Court.

CASE CLOSE-UP
Facts: Mariano (“okupa”) has been squatting in a house for two years. Sebastián tries to evict
him from the house, claiming that Mariano has no right to be there, because he is not the
owner.

First, we have to find out who Mariano is? In such case you have to consider that … Sebastián is
not entitled to succeed unless he can show a better claim to the house than Mariano. It is not
enough for Sebastián to show that Mariano has no title. Mariano is entitled to stay in the house
until someone with a better right to possession comes along. What if Sebastian is the rightful
owner ? What if Sebastian is a (new) squatter?

Question: What should Sebastian --the claimant / the plaintiff-- prove ? Answer: Sebastian
should prove that he : - is the registered owner - has inherited the house - has acquired
ownership of the house in the past, by adversely possessing it for at least (20 yrs CatCC //
10/20/30 yrs SpCC) with the only exception of the two most recent years.

WHAT HAPPENS WHEN THERE IS MORE THAN ONE POSSESSOR

PLURALITY OF POSSESSIONS: Different persons can possess the same item or property as long
as the concepts of possession are compatible.
PREFERENCE RULE: If two or more persons claim the possession over a thing, and the concepts
of possession are not compatible:

a) The person having possession at the time of the claim has preference; if there are two
or more possessors, the oldest shall be preferred.
b) If the date of one possession coincides with the date of the other possession, the one
with a title shall be preferred,
c) If all these conditions are equal, the object of the possession is deposited judicially while
the possession or property is being determined in accordance with the law.

Concurrent possession on the same object: Co-possession of one thing by several persons an
the same time is allowed. See art. 521-5 CatCC.

THE ROLE OF GOOD FAITH AND BAD FAITH IN POSSESSION

See art. 434 SpCC and art. 521-7.2 CatCC. Good faith in possession is the justifiable belief of
ownership of the right. If such belief is missing, the possession will be deemed to be in bad faith.
GOOD FAITH IS ALWAYS PRESUMED. The person asseerting the possessors’s bad faith shall
carry the burden of proving it. The effects of good faith cease from the time when the
possessors know, or can reasonably know, that they do not have the right to possess.

PROTECTION OF POSSESSION
The possessors and holders have a claim for retention and recovery of their possession against
any disturbances or usurpations, in accordance with the provisions of procedural law. The
Courts will deal with different claims depending on who the claimant.

A) If the plaintiff is the “owner” he/she is entitled to protection by way of:

1. Interdicts (retener y recobrar la posesión) - Also called “juicio de tutela sumaria de la

posesión” - It’s a summary proceeding (See art. 250.1 LEC) - It does not deal the issue
of who –either the plaintiff or the defendant- has the right to possess the thing, but
ONLY IF THE THING HAS TO BE RETURNED TO ITS RIGHTFUL OWNER A.S.A.P .

2. Possessory action (transcurrido un año de ocupación pacífica) - Also called actio

publiciana - (See art. 522-7.2 CatCC) - Possessors can recover the possession of the
thing or the right by means of the actio publiciana, before other possessors with no
right or with worse right do. The acquirer by usucapio must:

o Prove that he or she has a better right to possess

o Take action against the possessors who have the effective possession
o Identify the thing or the right that is the object of the possession

3. Criminal action (usurpación con violencia) - It applies in case of damages arising from
torts. - See art. 1902 SpCC.

4. Damages (daños en los bienes)

B) If the plaintiff is the “possessor” (squater) he/she will be protected against another squater
with no title or lesser title, who deprived him/her of the object (property, asset).
 • Actio publiciana (in order to have the object restored)

ACQUISITION IN GOOD FAITH OF MOVABLE PROPERTY

Regulation: See articles 464 SpCC and 521-7 CatCC

RULE OF THUMB: Acquisition of the possession of movable property in “good faith” and for
“financial consideration” (a titulo oneroso) involves the acquisition of the right on which the
concept of possession is based, even if the previous possessors did not have sufficient power of
disposal over the asset (or right). POSSESSION OF MOVABLE PROPERTY, ACQUIRED IN GOOD
FAITH, IS EQUIVALENT TO TITLE. Take into consideration the following rule: The proprietors of
a movable property that is lost, stolen, robbed or unduly appropriated can claim effective
possession from the possessors who have it, except if they have acquired it in good faith and for
financial consideration in a public auction or in an establishment devoted to the sale of similar
objects to said property and legally established.

ART. 464 SPCC REGARDING POSSESSION OF ILLEGALLY DEPRIVED CHATTE LS

BASIC RULES OF POSSESSION OF MOVABLES (“CHATTELS”): If the possessor of the lost or
stolen movable property should have acquired it in good faith at a public sale, the owner may
not have it restored to him without previously reimbursing the price he/she paid to acquire it.

The owner of things pawned in Pawnshops created with governmental authorisation may not
recover them, irrespective of who pawned them, without first reimbursing the Pawnshop the
amount of the pledge (and the corresponding interest).

As relates to things acquired in an exchange, fair or market, or from a legally established trader
who regularly trades in analogous objects, the PROVISIONS OF THE COMMERCIAL CODE
SHALL APPLY. The provisions is referring to art. 85 Commerce Code, according to which:

- Purchase of merchandise in stores or shops open to the public shall cause the
rights of the owner to prescribe in favour of the purchaser with regard to the
merchandise acquired ( … except for the right, if applicable, of the owner of the
objects sold to lodge the relevant civil or criminal action to which he/she may
be entitled to against whoever sold such objects unduly).

How does possession end? Regulation: See art. 460 SpCC and 521-8 CatCC. Possession is lost
for the following reasons:

a) Relinquishing the thing to another person (meaning the “voluntary” assignment or

cesión) of the property to another person, in a concept incompatible with the
possession of the person who makes the assignment).
b) Abandonment.
c) Loss or total destruction.
d) The fact of remaining outside the realm of legal transactions (res extra commercium).
e) The possession by another person, even when acquired against the will of the previous
possessors, if the new possession lasts more than one year. There is an european
directive, about cultural objects between member states.