action claiming adverse possession of Dominica from the Court Casatoria.
By: Andrew Chang Guillermo Hernández (*)
I. Introduction.
Resolution relapse in case No. 2318-2005-ST, discussed developing two themes in itself important: The origin of the action for restitution against those who have means usucapion and secondly the time the property is acquired by prescription , obviously the resolution has to comment on procedural points as you can see the vote of Mr. Carrión Supreme Vocal Lugo, however it is clear that we seek, in greater detail the substantive development of institutions that includes the resolution under review.
is the remedy of appeal filed by the Association and residents of Buenos Aires Private against the decision issued by the Civil Chamber of Chimbote to the Superior Court of Santa, who confirmed the appeal, declaring the appeal, arguing misinterpretation of a rule of substantive law, particularly Article 927 of the Civil Code, also alleged misinterpretation of Article 912 of the Civil Code. On which the Supreme Court decides to marry the appeal filed by the Residents Association of Private Buenos Aires, argued that it is necessary to acquire the property through adverse possession, the court statement, reasoned argument found in the eighth and ninth considerándoos Resolution of yore.
believe that to determine what is right or not the decision of the Court Casatoria is whether adverse possession is acquired and produces its effects by the mere passage of time and meeting other conditions required by law, because If so who would have no claim to demand right to do so, because the property no longer hold, it would be much less any right to demand possession.
II. Concept and scope of the action for repossession.
The judge's decision quem for confirming the court ruling, arguing that the action claiming it as the applicant rely listed as owner of the property whose ownership is claimed and that no transfer or sale to third parties. This clearly deduce that the Superior Court understands that the owner has occupied the property in an illegal way.
understood the same resolution it is possible that the same process renvindicatorio, if such a conflict of interest, you can also determine the best right to the property. In this regard, it is important to determine who understands our Civil Code claim and what their scope. Our
Civil Code does not expressly define what is the action for repossession, this work was left to the exclusivity doctrine. So we have to Planiol and Ripert, ² is the person who brings an action to claim the restitution of (anything) which is intended to be owner. It is therefore based on the existence of property rights and aims to obtain possession. " In turn Borda [1] argues that ² is the action that can be exercised which has the right to own something (good) for claim of who actually owns "
In this sense to understand fully the reivindación is appropriate to understand that the property right is between property rights, which gives a full dominion over the thing, of submitting our will in all respects and derive all the profit that can deliver on any of them " [2] and the claim is an action that only the owner is responsible possessor not trying to regain possession of the property. Jorge Avendaño, advocacy, is a faculty possessed by a person over an object for the exclusive right to property that has, and therefore it is real action that excellence and dominion acquires the ability to elucidate other aspects revolve around property rights. Has understood the law national point ² The action claiming is the real action par excellence, from that by this action may be elucidated contest property rights, in this sense when two people claim ownership over the same property, to determine who has superior right, is covered by rules on concurrence of creditors, priority registration, enforceability of property rights and public faith registration " [3]
doctrinally attempt to define it so we claim what was said by Dr. Lucrecia Maisch Von Humboldt, who ² replevin action is real action par excellence, because it protects the real law more complex and comprehensive is the domain " [4]
As to the comments we can claim to understand it as the embodiment of persecutoriedad real property law and as such a doctrine means that not only lets you operate in towards the possession of the property but also the very recognition of the property when two or more people claim. Luis Diez-Picazo, on the statement tells us ² The power of persecution is a feature of the property right and is that the real right will have the option legally protected (Drot de suite) to pursue or go get the thing where you are and whoever the person stop or has in his hands " [5] therefore expressed by the English teacher reinforces the idea that the scope of action includes not only vindicating regain possession but also the protection of other powers inherent to ownership. Likewise, we again say Diez-Picazo ² The owner may claim that their right to property is recognized by a declaratory action against anyone who is unaware and may also seek restitution of the thing in front of who improperly holds " [6 ]
We understand that this double perspective of the action claiming it follows the identification requirement Owner clear, however its scope does not include the recognition we a better ownership, a move that deserves its own way, in this sense in an eventual repossession process the parties to protect its right in its title as owner of the property, the other party may challenge the title, in which case the judge is authorized under the regulations so that you may recognize the validity and effectiveness of authoritative title to claim, however did not declare the best right to property, which as mentioned is one way own, and has already said the country's Supreme Court, by decision in Appeal No. 619-95, Ica.
III. Acquisition property rights through adverse possession: Requirements and time efficiency.
A first account we have says that the adverse possession is understood as a way to acquire ownership of a real right by possession under certain conditions prolonged and of a good (article 950 and 1040 CC)
The Mazeaud mean by adverse possession that it leads to acquiring the rights and concerns but no real rights, no legal provision on the rights adquisitva personal or credit " [7] . These same authors add "as the acquisition of the possessor of a thing of ownership or other real rights over that thing, the effect prolonged possession for some time " [8]
In our Civil Code regulates the adverse possession in Articles 950 to 953, rules that allow us to point out that our coders have understood that institution as the owner does possession of movable or immovable, in our case, by the mere passage of time fixed by law in effect when analyzing the articles 950 and 952 of the civil standard is not required appreciate that judicial recognition to the acquisition of property by continued ownership of property.
of the rules above the national doctrine draws the following requirements for the admissibility of Adverse Possession: i. Continuous possession, peaceful, public, ii, which is held as owner, and iii. That is held by just title and in good faith.
appreciate in this way that does not require a judicial declaration to declare the acquisition of property by adverse possession. Supports this position clearly in Article 952 of the Civil Code of 1984, as has ² when purchasing a prescription may well be to court to declare that he owns ... "(emphasis added). In this sense we can say that our coders have understood that the benefit of the acquisition of the prescription may alternatively request a declaration judiciary, which is limited to finding that the facts that make up the factual scenarios of the standard have been busy and also serve as a title for the registration of the new owner and to remove the seat for the previous owner in the appropriate register. Although not uniformly our Supreme Court has ruled that ² The usurpation is automatic, and the law does not require you to acquire this right has previously obtained a favorable ruling to declare it so in a process of limitation adquisisitiva domain since Article 952 of the Substantive, it is clear in stating that he acquires a prescription can sue to be declared owner, but of course this, the full effect erga omnes result from the adverse possession only recognized by court decision and register for public records under the final stop of Article " [9]
We ended this part saying that the judicial to declare the acquisition of property by prescription, while enabling for registration of property records and thereby gain all the benefits that this implies, if not performed does not detract from the law and obtained by the possessor, then remember that about our system of property registration in the records is merely declaratory and not constitutive law the same. In this sense in the sentence under analysis is successful the Court's position as Casatoria provides that, in the same process demanding whereas the arguments being discussed by the parties, this is the persistence of the complainant's right to recover the asset and another verification of the acquisition of the property through usucación with which obviously the right of the first would lack legal protection.
IV. The logic of the decision said: There is no claim if the owner does not exercise
Indeed, recall that the appeal is based on an incorrect interpretation of Articles 912 and 927. So we will focus primarily on Article 927 of the Civil Code, which we believe has been the backbone of nerve Court ruling for wedding resource. This rule states ² replevin action is inalienable. Is not admissible against one who acquired the property by prescription. "
Thus we suggest that the last part of the abovementioned article in wanting to clarify the origin of the action for repossession creates confusion for some. In effect the true meaning of the rule in the second part of Article 927 is consistent with Article 952 of the Peruvian Civil Code is thus not necessary to claim against any person who acquired the property (which via claimed possession claim) by adverse possession, because if the latter happens reivindcación accusing the owner is no longer and it is therefore logical than the standing to sue the action.
V. Concluding remarks.
In resolution that says the Supreme Court rules on an issue that has received dissimilar other faults, which is whether to purchase the property through adverse possession requires a court order, this time it does so fitting, because recognizes that the acquisition of the property through adverse possession is one that operates as full compliance with the conditions required by law and by the only during the time required to do so. Although we can not forget that our Supreme Court there are conflicting decisions on this issue.
It is clear from reading the resolution under consideration, was vital in the opinion of the Judge of merit, determine when it is acquired the property through adverse possession, because if it is understood that this requires a prior judicial decision We believe the decision of the Review Board had not been married, however the merit in our legal system it is not necessary, the Supreme Court remanded the case to the lower court in order to confirm the existence of the conditions required to acquire the property via Adverse Possession and as a result of the latter issue the appropriate decision in the grievance process concerned ..
* Professor of the Universidad Privada San Juan Bautista - Affiliate Ica, Post-Gado by the University of Castilla - La Mancha (Toledo - Spain), Consultant to the Regional Office of Energy and Mines of Ica
[1] BORDA , Guillermo. ² Treaty Rights in rem ", T-III. Perrot ed. 3rd edition. Buenos Aires
[2] ALBALADEJO, Manuel. Civil Law I ² "Librería Bosch, 3rd Ed Barcelona -1977. T-1, p.
243-245 [3] CAS. No. 4221-2001-AREQUIPA
[4] Maisch VON HUMBOLDT, Lucrecia. ² Property Law "1st Ed. Typography Sesator publishing company. Lima 1980
[5] TEN-PICAZO, Luis. ² Basic civil law heritage. " Editorial Civitas the 4th Ed. Madrid, 1995. T-III, p.
817 [6] Idem.
[7] In: AVENDAÑO VALDEZ, Jorge. "Real Rights." Editorial PUCP. Lima1989 the 2nd Ed, p. 202.
[8] Idem.
[9] Cas. No. 2792-2002-Lima
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