Author: David García

Some of the most common conflicts between neighbours or between adjoining property owners involve disputes over who is entitled to a piece of land, an area of land or a road.

One of the adjoining owners may make use of an area of land or part of a building believing that he is entitled to it, while the other owner may consider that the use being made by his neighbour is not legitimate.

What to do in this situation?

To resolve this type of situation, our legal system has a mechanism to protect the rights of the genuine owner who has been unjustly deprived of his possession.

This is the procedure called summary guardianship of possession, traditionally known as interdicto de recobrar la posesión (injunction to recover possession). This tool is used, for example, so that a person who holds a right of way over a road and who finds that his neighbour has installed a wall to prevent him from passing over it, can recover this right to pass over the road.

Thus, article 441 of our Civil Code states:

“In no case may possession be acquired violently while there is a possessor who opposes it. Whoever believes he has the right to deprive another of the possession of a thing, provided that the possessor resists delivery, must request the assistance of the competent authority”.

Likewise, it is not possible that, if a person considers that he is entitled to the disputed area and that it has been taken from him, he can take the initiative to recover this possession by his own means (for example, by knocking down dividing walls), but he is obliged to follow the corresponding judicial procedure. Article 446 of the Civil Code provides as follows.

“Every possessor has the right to be respected in his possession; and, if he is disturbed in it, he must be protected or restored in his possession by the means established by the laws of procedure”.

What does possession mean?

In view of this situation, let us clarify what the term “possession” means. In legal terms, our Civil Code defines it as follows in its article 438:

“Natural possession is the holding of a thing or enjoyment of a right by a person. Civil possession is that same possession or enjoyment coupled with the intention to have the thing or right as one’s own”.

And what is the difference between possession and ownership?

Possession is having the property, making use of it, living in it. It is a de facto situation.

Ownership, on the other hand, is a legal title that allows the holder to both make use of the property and dispose of it in any legal way: to live in the property, to mortgage it, to rent it, to sell it, etc.
Both owner and possessor can avail themselves of the procedure of summary guardianship of possession, which is simply a way of recovering possession from someone who has been unjustly deprived of it.

The four requirements for recovering possession

The courts have repeatedly identified four requirements that must be met in order for possession to be recovered:

  • The claimant must have de facto possession of the thing or right at the time when he was deprived of it. In other words, this requirement would not be met if the person who is claiming possession did not have it in his possession when the other person took it.
  • It must be the defendant (or a third party following the defendant’s orders) who has illegitimately deprived the claimant of possession. This means that the claimant must address his claim to the one who has disturbed his possession.
  • There must be a will on the part of the defendant to deprive the claimant of possession, known as animus spoliandi. It is therefore a question of there not having been a mistake on the part of the one who has dispossessed the other of his property or right, but actually having the conscious intention to do so.
  • The action to recover possession must be brought within one year from the time when the possessor was deprived of possession.

What procedure must be followed?

The procedure for summary guardianship is conducted as an oral trial. It can be found in the fourth point of article 250.1 of the Law on Civil Proceedings

“Those seeking the summary protection of the tenancy or possession of a thing or right by someone who has been deprived of it or whose enjoyment of it has been disturbed”.

The importance of the time limit for claiming

As we pointed out, the time limit available to initiate proceedings for summary protection of possession is one year from the moment in which the dispossession took place.

This is established in article 439.1 of the Civil Procedure Act (LEC):

Claims seeking to retain or recover possession will not be admitted if they are filed after a period of one year has elapsed from the time of the act of disturbance or dispossession”.

With regard to this time limit, the following must be taken into account:

1. This time limit expires after one year, without being interrupted.

2. The period of one year is not calculated from the moment in which one becomes aware of the disturbance in possession, but from the very moment in which the dispossession of possession has taken place, regardless of whether or not the owner of the property or right has become aware of it.

This means that the temporal element is key for our claim to be upheld or rejected. For example, even if we realised the day before yesterday that another adjoining owner is using a plot of land that belongs to us, if he can prove that he has been in possession of that land for more than a year, we will not be able to claim it from him in this way.

If you find yourself in a situation where you need to recover possession of a property, please contact us so that we can advise you and accompany you throughout the procedure.