Undivided Shares in Real Estate
It happens that in most jurisdictions, the right to acquire property if it has been possessed for a certain period of time (acquisitive prescription, usucapion, or adverse possession in English and American law) is not automatic nor easily invoked by the occupying co-heir against the other co-heirs.
The difficulty for the co-owner or co-heir who occupies real estate to acquire the entire property is due to the fact that possession for acquisition by prescription requires what in Roman Law was called animus domini (the intent to act as exclusive owner of a thing without recognizing another’s property right), similar to what in Anglo-Saxon Law is known as “hostile” possession, in the sense of denying the right of the original owner. But since the co-heir begins occupying precisely as a co-heir—and not as exclusive owner—and since no one can change the cause of their possession by their sole will, they normally do not occupy with the intent of sole owner, but rather with the tacit tolerance of the remaining successors.
In Spain, the Supreme Court has established this criterion in numerous judgments:
“Possession as owner, as an essential basic requirement of both ordinary and extraordinary usucapion, is not a purely subjective or intentional concept, since the possessor by mere tolerance or by personal title recognizing ownership in another person (registry entries that only attribute half of the ownership to them, not the other half, which belongs to the other co-owners), cannot acquire by prescription, even if they wish to cease possessing in this concept and adopt the ‘animus domini’; because although extraordinary prescription does not require just title, it is obvious that intention (subjective aspect) is not sufficient to possess as owner, but rather an objective causal or precedent element is required that reveals that the possessor is not a mere holder for another, as can be deduced from the Doctrine established by this Chamber in its Judgments of February 9, 1935, October 3, 1962, and November 20, 1964.” (STS June 19, 1984)
“…for the acquisition of ownership of property by usucapion (both ordinary and extraordinary) to occur, it is an unavoidable requirement that the possession of such property be as owner, which requirement is not met in the present case, since, as has been stated previously several times, the judgment appealed here declares proven that Mr. Manuel Maria VD came to possess the property from the inheritance of his father Mr. José VG not as owner thereof, but as heir and for the benefit of the other co-heirs of said decedent.” (STS July 24, 1998)
In Spain, therefore, the exclusive possession of the entirety of real estate held, even for many years, by one of the co-owners or their successors (heirs) is not in itself sufficient to acquire the property by prescription.
In Italy, recently the Court of Cassation—the highest Italian court—ratified criteria that make acquisitive prescription difficult to apply among co-owners, and especially when the co-owners are relatives of the person occupying the property.
In its judgment No. 9359 of February 7, 2020, the Italian Court recalled that for a co-owner to acquire from their other co-owners by prescription, the occupant must demonstrate possesso ad excludendum, understood as the situation in which the co-owner occupies through activity incompatible with the possession of the other co-owners.
This is a complex demonstration, because Article 1144 of the Italian Civil Code explains that acts performed by one of the occupants with the tolerance of the other co-owners cannot serve as a basis for the acquisition of possession. Therefore, the fact of making exclusive use of the property, or having its keys, or that the other co-owners do not use or visit it, does not imply that the person occupying the property does so in a manner incompatible with the possession of the other co-owners.
Interestingly, in this judgment the Court of Cassation added that the long period of possession may create a presumption of intent to act as exclusive owner when the co-owners are third parties, but not when family ties exist.
These criteria that limit the application of acquisitive prescription among co-heirs give rise, especially in towns, to the existence of real estate in which a certain undivided share belongs to the descendants of those who emigrated, typically from Europe to America.