Adverse Possession of Property in Peruvian Case Law

It is indisputable that the right to property has a direct link with the economic system of a society, as it constitutes its principal instrument. Economies governed by the principles of Social and Democratic Rule of Law acknowledge that property enables the generation of wealth and, thereby, the promotion of general welfare.

Although, like every fundamental right, property is not absolute, its importance warrants special protection. A ‘strong’ right to property constitutes a clear incentive for the development of private activity.

It is within this context that acquisitive prescription of ownership assumes particular relevance; an institution rooted in the Roman civil law system, and reflected in Anglo-Saxon law through a very similar legal construct known as ‘adverse possession’. It is a mechanism that fulfils two functions: firstly, it establishes the right of property; and, secondly, it provides access to it.

Acquisitive prescription of ownership allows property to be established because possession exercised over a certain period of time makes it clear that an individual is the owner; this is particularly significant where there is some deficiency in the title supporting that right, or where the country’s registration system presents shortcomings. Moreover, it enables the acquisition of property because, as a consequence of the foregoing, possession exercised for a specified period and under certain conditions (such as being continuous, public, peaceful, and owning the property as an owner) results in an individual making a good his own, thereby removing it from the patrimony of the former owner.

The significance of acquisitive prescription of ownership, given its connection with the right to property, has – by no means – gone unnoticed in Peruvian jurisprudence. It is well understood that this mechanism has a clear impact on the economic system, and, thus, it has been the subject of analysis and study in four Civil Plenary Cassations; convening all the Supreme Judges of the Civil Chambers of the Supreme Court of Peru, with the purpose—aimed at strengthening legal certainty—of unifying jurisprudential criteria and establishing binding rules of mandatory compliance for all lower judicial instances.

The Civil Plenary Cassations that have addressed acquisitive prescription of ownership are the following:

  • 2009 Second Civil Plenary Cassation: It establishes that joint, homogeneous possession exercised with the intention of ownership may be consolidated into a right of co-ownership in favour of all co-possessors. Based on the concept of co-possession, it is held that there is no legal impediment for ‘two or more homogeneous co-possessors’ to acquire a property through acquisitive prescription; a scenario which is not possible when the possessions are of a different nature, such as, for instance, when one individual acts as owner and the other as a mere possessor’s servant.

  • 2013 Fourth Civil Plenary Cassation: It clearly delineates the scope of acquisitive prescription of ownership when invoked as a defence in an eviction process for precarious occupation—that is, when possession is held without a legitimate title or when the title previously held has expired—since it establishes that prescription is neither presumed nor subject to judicial declaration within such proceedings, as it requires its own process (and analysis); and, above all, a final judgment recognising it in order to become legally enforceable. By preventing eviction proceedings from turning into a property trial, the Plenary reaffirms that acquisitive prescription must be debated in the corresponding declaratory action, thereby allowing that—once a definitive favourable ruling is obtained—the already acquired right of property may be asserted.

  • 2020 Tenth Civil Plenary Cassation: It establishes binding rules on evidence and its assessment, which directly affect ownership disputes. In this way, it determines that: revendication does not proceed against one who has acquired through prescription; it requires a rigorous evidentiary examination of the right of property; it authorises the judge—exceptionally and with proper reasoning—to admit evidence ex officio in order to clarify disputed facts (such as identifying property or overlapping claims); and it obliges a joint and rational evaluation of the evidence.

  • 2025 Eleventh Civil Plenary Cassation: A new plenary session has recently been convened to address, once again, acquisitive prescription, in a dispute concerning the aggregation of possession periods. Although the decision resolving the conflict has not yet been issued, during the hearing corresponding to the case matters were discussed such as: the disparity of criteria regarding the evidentiary standard required of a claimant seeking to be declared owner by prescription; the proper interpretation of peaceful possession; the interruption and suspension of the prescriptive period, among others.

In short, acquisitive prescription of ownership is a structural institution of the property system: it transforms a sustained, public, and qualified possession into a stable right, capable of resolving uncertainties and reinforcing legal certainty where title or registration prove insufficient. Precisely because of its economic and social impact, the Supreme Court of Peru has progressively closed avenues for strategic or dilatory use and raised the standard: (i) it accepts that co-ownership may be consolidated where there is homogeneous co-possession with intent of ownership; (ii) it requires that prescription be asserted in its proper procedural route, with a final ruling, and not merely as a defence to block evictions; and, (iii) it imposes that, in ownership disputes, the judge must decide on the basis of solid evidence—even exceptionally admitted ex officio—assessed jointly and rationally. The message is therefore clear: acquisitive prescription is a public-order instrument to stabilise property, but its recognition depends on truly qualified possession duly proven and on rigorous judicial control, consistent with effective protection and with the need for predictability in the economic system.

Author: Joel Campos Camargo