Legal Analysis of Property Demarcation and Recovery Actions

Case Study 5: Demarcation and Recovery Actions

1. Applicability of the Action of Surveying and Marking (Demarcation)

The action of demarcation requires two fundamental conditions for admission:

1. That there is confusion of boundaries between the adjoining properties, meaning there are no external signs of demarcation between the two farms.
2. That there is promiscuous possession of a strip of the border zone (the area where the land begins and ends).

In this scenario, there is no confusion of boundaries. The existing fence acts as an element of closure, signifying the separation of the neighboring farm. Altering the fence constitutes robbing the neighbor of the expropriated strip (usurpation). Since there has been an occupation of the neighboring estate and the strip was acquired through occupation (adverse possession), and not through mere confusion, the action of surveying and marking is not applicable.

2. Necessity of Bringing a Recovery Action (Reivindicatory Action)

The appropriate legal recourse is the repossession action (or acción recuperatoria), used when property has been usurped or stripped. This action must fulfill the three requirements established by the Supreme Court (TS), as referenced in Article 348, paragraph 2 of the Civil Code (CC):

1. The applicant must prove ownership of the thing claimed (dominus auctoris).
2. The defendant must possess the property unduly, and the applicant must demand its surrender. This requirement is met.
3. The specific thing claimed must be clearly identified and match the applicant's ownership.

These requirements must be met for the repossession action to flourish.

3. Prescription and Usucapion (Adverse Possession)

The case involves a significant time factor: 33 years have elapsed since the shift of the fences occurred. This duration is critical when considering the statute of limitations and adverse possession:

• Prescription of Real Actions: According to Article 1963.1 of the Civil Code, real actions concerning real property expire after 30 years.
• Extraordinary Usucapion: This period coincides with the acquisition of the strip via extraordinary usucapion (adverse possession), which Article 1959 sets at 30 years of owning a property without the consent of the original owner.

Given that 33 years have passed, the plaintiff's recovery action would likely not succeed because the action is prescribed. The plaintiff would not flourish for recovery. In the civil proceedings instituted for restitution, the defendant must actively assert the defense of prescription.

The Role of the Defendant and Judicial Procedure

The defendant must assert their right (derecho) to prescription; the judge does not apply this procedure automatically. While prescription and occupation share common elements, the prescription of an action is not obtained in the same way as the action itself. Prescription can only be successfully asserted if the defendant requests it, especially if the defendant is aware that the action has prescribed.

Attempt to Circumvent Prescription

The action of boundaries (demarcation) is imprescriptible (Article 1965 of the Civil Code). What matters is that the applicant is attempting to circumvent the failed recovery action by claiming ownership to bring an action of the boundaries (a form of fraud of trial). This tactic is very common in practice.