Usucapião in Portuguese Law: A Route to the Lawful Acquisition of Property

By Maximiliano Dias (Lawyer at Jaime Roriz)

In the Portuguese legal system, usucapião stands out as a means by which continuous possession of an asset may result in the lawful acquisition of ownership. The concept of usucapião is set out in Article 1287 of the Civil Code, which provides as follows:

“Possession of the right of ownership or other real rights of enjoyment, maintained for a certain period of time, entitles the possessor, save where otherwise provided, to acquire the right whose exercise corresponds to their acts: this is known as usucapião.”

In simple terms, the Civil Code establishes the possibility of a person acquiring an asset by possessing it continuously for a long period, provided that such possession corresponds to the exercise of the relevant right.

Who has capacity to acquire?

Usucapião benefits those with legal capacity to acquire. Even where incapacity has been declared due to age or a mental disorder, it is possible to acquire the asset personally or through a legal representative.

How does usucapião work in Portuguese law?

To rely on usucapião, the law requires three conditions that may be recognised:

1. Public use: The local community must recognise the possessor as the sole owner, with public knowledge of the use of the asset;
2. Peaceful use: Use of the asset must not give rise to disputes. Violent or concealed possession only begins to count towards usucapião once the violence has ceased or becomes public;
3. Uninterrupted use: The possessor must use the asset continuously and without periodically abandoning it, and must be publicly recognised as its regular user.

When may usucapião be invoked in Portugal?

Acquisition of ownership by usucapião can only take place if possession has been maintained for a specified period, which the law defines on the basis of three requirements:

1. Where there is a title of acquisition and registration: Possession in good faith for 10 years or in bad faith for 15 years, from the date of registration.
2. Where there is no title of acquisition, but there is a registration of mere possession: Possession in good faith for 5 years or in bad faith for 10 years, from the date of registration.
3. Where there is neither a title of acquisition nor a registration of mere possession: Good faith for 15 years or bad faith for 20 years.

It is important to note that mere possession is only registered after a final judgment in a notarial deed of justification proceedings, in which it is recognised that there has been peaceful and public possession for a period of not less than 5 years.

It is also relevant to explain why the law makes a distinction between acts carried out in good faith and in bad faith.

An act is considered to be good faith when the possessor uses the asset with care, without knowing that they are infringing another person’s rights, assuming that the property is abandoned and that the owner has never appeared before them.

By contrast, in an act of bad faith, the possessor is aware that an owner exists but chooses to take advantage of their absence by occupying the asset covertly.

How do you invoke usucapião in respect of a property asset?

Acquisition by usucapião of a property follows the rules of the Notarial Code (Articles 89 et seq.) and the Land Registration Code (Articles 116 et seq.), and Chapter VI of the Portuguese Civil Code, in its current wording, is entirely devoted to usucapião.

The interested party must apply for recognition at a land registry office through a notarial deed of justification, declaring exclusive possession, the cause of acquisition, the initial circumstances of possession, as well as those that characterise the use of the asset and those that gave rise to usucapião.

In addition, the usucapião deed process will require:

1. Three unrelated witnesses who attest to the user’s relationship with the asset in which they have an interest;
2. The submission of documents (means of proof) that the services consider necessary according to each situation;
3. Payment of fees to the Land Registry service and stamp duty on the property’s tax value;
4. A 30-day waiting period for third parties to object to the acquisition, with the deed being published in a newspaper of national or local circulation; if no objection is raised by the end of that period, the interested party may be considered the lawful owner.

Is it possible to invoke usucapião in relation to a leased property?

No, it is not possible, since there is a contractual relationship with the owner under the lease agreement. The tenant cannot become the owner by usucapião simply by being a mere holder of the property.

Can usucapião be overturned?

Yes, it is possible to overturn usucapião through court proceedings. If you detect an unlawful usucapião of your own asset, you should turn to the courts in a peaceful and transparent manner.

Final provisions on usucapião in Portuguese law

Although usucapião is an effective way of acquiring property, exercising this right requires very careful analysis. Ethical issues, such as the possessor’s good faith, and legal challenges, such as opposition from the true owner, stand out as critical elements in this process; for this purpose, you should always consult a lawyer.

If you have questions about usucapião in Portuguese law, get in touch with us.