The adverse possession and the registration: should we rethink the theme?

J. A. Mouteira Guerreiro

Keywords

Possession; adverse possession; registry; property; rights; publicity

Abstract

The article deals with the question of ownership leading to adverse possession and its prevalence over the registry. This prevalence, which is questioned, corresponds to the solution from the provisions of Article 1268º of the Civil Code, according to the interpretation that is traditionally given to the precept. However, the historical circumstances that constituted their ratio are now deeply changed, especially with the forthcoming of a multitude of owners and property rights, together with the mutual ignorance of the people. Those events contribute decisively to the lack of advertising and the equivocity of the possession animus. Also, the advent of the information society and the speed of transactions and new registry rules, become the registration system capable of achieving the 'buying process' "ex ante" of hiring that the transferor is legitimately licensed, and this only allows the registry. However, the appreciation of the existence of a prior possession is made "ex post". So it is necessary to make a modern or even revocatory interpretation of the article 1268º whose traditional interpretation contradicts other precepts and principles such as legal certainty and protection of trust, especially the necessary legal real estate commerce and the credible publicity of the rights.