Time and acquisition in usucaption

In usucaption, the passage of time is an essential element in the emergence of the right. The length of time required to usucapate varies according to:

• Of the asset category;
• Of the subjective situation of the possessor (good or bad faith);
• Of the existence or non-existence of a suitable title;
• Of the existence or non-existence of transcription (a means of advertising real estate and registered movable property).

Thus, while the ordinary usucaption of real estate, requires uninterrupted possession for twenty years, the “abbreviated” usucaption of real estate (pursuant to Article 1159 of the Civil Code) requires that possession has lasted, uninterruptedly, for only ten years, from the date of the transcription of the title.

Depending on the nature of the property subject to usucaption, the law prescribes, in addition to the existence of the typical requirements for abbreviated usucaption:

• The good faith of the possessor;
• The title abstractly suitable for transfer;
• The transcript of the same;
• that for unregistered movable property, when the abstractly suitable title, necessary for acquisition a non domino under Article 1153 of the Civil Code, is lacking but the other requirements just seen exist, usucapation is accomplished by possession protracted for ten years(ex art. 1161 c.c.).
• that for movable property registered in public records, the term is only three years of continuous possession(ex 1162 paragraph 1 Civil Code).
• That the short usucaption of universality of furniture is accomplished as a result of uninterrupted possession for 10 years(ex 1160 Civil Code).

It should be borne in mind that nonapparent easements, that is, those that are exercised without there being visible and permanent works for that purpose, cannot be usuced.

Another essential requirement of usucaption is the good faith of the purchaser. It consists of the ignorance of injuring another’s right; it is presumed and it is sufficient that it was present at the time of the beginning of the possession itself. However, it should be clarified that the good faith of the successor in title is to be understood in the sense that the successor in title must be unaware that his or her predecessor in title was not the owner. In fact, the rule under consideration tends to protect not only the security of legal transactions but also the legitimate expectations of the buyer, who, at the time of delivery of the res, had relied on the appearance of ownership of his or her predecessor.

Finally, the last requirement for the occurrence of special usucaption is the existence of an abstractly suitable title, in the sense that the originator is not really the owner of the right that is intended to be transferred and, therefore, the title will only be “abstractly” suitable for the transfer itself, since the translative effect will be precluded precisely by the aforementioned absence of legitimacy. Now, since there could be no translative effect, because no one can really transfer a right he or she does not have, but since the need to protect the purchaser’s legitimate expectation persisted, the legislature had no choice but to introduce this particular case of purchase by title. It should be pointed out, however, that for the non-domino purchase to be operative, the title must not be void, that is, it must not have such serious defects as to be irremediable. According to prevailing jurisprudence and doctrine, however, those transactions that may lapse as a result of annulment or rescission but are productive in effect are to be considered “suitable” for this purpose.

Attorney Chiara Roncarolo

Attorney Maurizio Randazzo