The Subjective Element in Usucapion and in Crimes related to the Illicit Acquisition of Real Estate.

Abstract

The subjective element plays an essential role both in usucapion and in the criminal classification of acts involving the illicit acquisition of real estate. In civil law, animus possidendi (the intention to possess the property as a true owner) is a sine qua non condition of usucapion, without which possession cannot be considered useful and does not produce legal effects. This intention must be constant, unequivocal and visible, and its proof is based on external manifestations, such as paying taxes, fencing or maintaining the property.

In contrast, in criminal law, the subjective element is translated by the criminal intention of the perpetrator to acquire or keep real estate in violation of the law, knowing the lack of his right of ownership. Thus, acts such as usurpation of property, real estate fraud or forgery can transform an apparently legal possession into criminal conduct, depending on the purpose pursued and the means used.

The distinction between civil possession in good faith and fraudulent possession with criminal intent requires a rigorous analysis of the subjective element in both branches of law. Therefore, coordination between civil and criminal courts is necessary to avoid contradictory qualifications, and recent doctrinal proposals recommend the development of objective criteria for identifying the intention of possession for the purpose of usucapion versus the intention of illicit acquisition.