From the Latin usucapĭo , usucapion is the acquisition of a right or property through its exercise under the conditions and deadlines provided by law. Usucaption, also known as acquisitive prescription, is a way of accessing the property of a thing through the continued possession of real rights during the time established by law.
Other elements that must be clear regarding the usucapion is that it is retroactive. And it is considered that, once the term has elapsed, the acquisition of the right occurred at the moment in which it began.
For usucapion to exist, there cannot be an action against the possession in question by the affected party. The existence of usucapion can be justified by two theories: the objective theory and the subjective theory.
The objective theory maintains that the foundation of the usucapión is in granting security to the legal relations when consolidating the apparent titles. This theory, therefore, seeks to maintain the status quo of possession.
The subjective theory, on the other hand, justifies the usucapion from the abandonment or renunciation of the real right that the owner has, since he does not exercise any defense action against the possession of another. The problem with this position is that, when the holder shows that the will to resign is non-existent, the usucaption is immediately invalidated.
It is interesting to establish, in addition to all that has been exposed so far, that there are two clearly differentiated types of usucapion. Thus, on the one hand, we find the ordinary call, which is one that is identified by requiring a fair title for the time established by law and also in good faith.
It is important to be clear that the aforementioned title has to be valid and true. And it also has to be able to be tested, since at no time is it presumed.
And, on the other hand, there is the extraordinary one, which does not require either of the two elements mentioned above. That is, neither the title nor good faith.
However, it should not be overlooked that there are other types of usucapion. Thus, for example, based on what is the interruption of possession, the Civil Code divides that into two groups:
Civil interruption. It is the one that occurs as a result of the judicial summons that is made to the possessor. An act of conciliation can also cause this type of interruption, as does the recognition by the holder of the owner's right.
Natural disruption. It is the one that takes place when possession ceases for more than a year, regardless of the causes that give rise to this circumstance.
The person who acquires or claims a right through usucapión is known as usucapiente. This can aspire to usucapion from the ordinary acquisitive prescription (when acting in good faith and with just title) or extraordinary acquisitive prescription (it does not require good faith or fair title since it is based only on possession).