Adverse Possession ('Prescripción Adquisitiva'): Can Someone Legally Claim Your Unused Land in Ecuador?

As an expat investor in Ecuador, particularly in the appealing highlands of Cuenca, you have likely secured land with plans for the future. The assumption is that your registered property title (escritura pública) provides absolute, unchallengeable ownership. However, Ecuadorian law contains a doctrine known as prescripción adquisitiva de dominio, or adverse possession. This legal principle, rooted in the Código Civil, allows an individual to acquire legal ownership of property by possessing it openly, peacefully, and continuously for a period defined by statute. For any landowner, especially an absentee one, understanding this doctrine is not just academic—it is essential for safeguarding your investment.

This article provides an expert-level breakdown of adverse possession in Ecuador, the specific legal requirements for a claim, the judicial process, and, crucially, the proactive measures you must take to ensure your property rights remain inviolable.

Understanding 'Prescripción Adquisitiva' in the Ecuadorian Civil Code

The concept of adverse possession is detailed in Título XL del Libro IV of the Ecuadorian Civil Code. The law's rationale is twofold: to promote the productive use of land over indefinite idleness and to provide legal certainty to long-standing possession disputes. While this may seem to penalize absentee owners, it fundamentally rewards diligent possession over passive, registered title alone.

Ecuadorian law establishes two distinct forms of adverse possession:

Prescripción Adquisitiva Ordinaria (Ordinary Adverse Possession): This requires a shorter possession period of five (5) years. However, it imposes stricter conditions: the claimant must possess a "just title" (justo título)—a document that appears valid but may have a legal defect—and must have possessed the property in good faith (buena fe), believing they were the legitimate owner. This is less common in disputes involving expats who hold a valid, registered title.
Prescripción Adquisitiva Extraordinaria (Extraordinary Adverse Possession): This is the more significant concern for property owners. It does not require just title or good faith from the claimant. The core requirement is uninterrupted possession for fifteen (15) years. This is the primary mechanism through which a squatter or long-term occupant could attempt to claim your land.

The Pillars of an Adverse Possession Claim: What the Law Demands

A claimant seeking to acquire your property via extraordinary adverse possession must prove a confluence of stringent legal requirements in court. These are not easily met and are outlined in Artículo 2410 and related articles of the Civil Code. The claimant's possession must be:

En concepto de señor y dueño (With the intent of an owner): This is the most critical element, often translated as ánimo de señor y dueño. The claimant cannot be a mere tenant, employee, or caretaker (cuidador). They must act as the true owner, making decisions about the land, investing in it, and excluding others, including the registered owner. A classic sign of this is the claimant paying the annual property taxes (impuestos prediales) in their own name, which is compelling evidence for a judge.
Pública (Public): The possession must be open and notorious, not clandestine. The claimant’s use of the land—such as fencing, cultivating crops, or constructing buildings—must be visible to the community and the legal owner.
Pacífica (Peaceful): Possession must have been initiated and maintained without violence or force. If the claimant had to forcibly eject the owner or their representatives, the "peaceful" element is negated.
Ininterrumpida (Uninterrupted) for Fifteen Years: As established by Artículo 2411 of the Civil Code, the possession must be continuous for a full fifteen-year period. Any legally recognized act of interruption by the true owner, such as filing a legal action or formally demanding the occupant to vacate, resets this statutory clock to zero.

The Legal Process: A Lawsuit, Not a Simple Claim

Acquiring title through adverse possession is not an administrative task; it is a full judicial proceeding. The claimant cannot simply file papers at the property registry.

Filing a Lawsuit: The claimant (actor or demandante) must file a formal lawsuit (demanda de prescripción adquisitiva de dominio) in a civil court within the jurisdiction where the property is located.
Summoning All Parties: The claimant must legally summon the registered property owner (demandado). Critically, they must also include the municipal government (Gobierno Autónomo Descentralizado or GAD) as a party to the lawsuit, as the municipality has an interest in property boundaries and taxes.
Inscripción de la Demanda: A crucial, expert-level step: upon acceptance by the judge, the claimant's attorney will request an order to register the lawsuit (inscripción de la demanda) in the public record at the local Registro de la Propiedad. This places a public notice directly on your property's title, effectively preventing you from selling the land until the case is resolved.
Evidence and Trial: The claimant bears the burden of proof. They will present witness testimony from neighbors, photographic evidence of their improvements over the years, receipts for materials, and proof of property tax payments if available.
Owner's Defense: As the registered owner, you have the right to vigorously defend your title. Your defense would focus on demonstrating that one or more of the legal pillars were not met—for example, by proving you visited the property, sent formal notices, or that the claimant's possession was not "as an owner" but merely as a caretaker.
Judgment and Registration: If the judge rules in the claimant's favor, the judgment (sentencia) is sent to the Registro de la Propiedad to cancel the previous owner's registration and create a new title in the claimant's name.

Hyper-Specific Pitfalls and Proactive Defenses for Expats

Absentee owners are uniquely vulnerable. Here are common mistakes and the expert-level strategies to counter them:

The "Friendly" Caretaker Misconception: You allow a local family to live on your land as caretakers (cuidadores) with a verbal agreement. Years later, they claim the land. Defense: Never permit use without a written contract. The correct legal instrument is a contrato de comodato (a contract for use without rent). This document legally establishes that their presence is by your permission and they are not possessing the land ánimo de señor y dueño. This single document is a powerful shield against a future claim.
Ignoring Minor Encroachments: A neighbor moves their fence a few meters onto your land. You ignore it for years. This can be the seed of an adverse possession claim for that portion of your property. Defense: Act immediately. The most effective tool is not a phone call, but a requerimiento notarial. This is a formal demand delivered by a notary public, which creates an official, undeniable record of your protest and interrupts the "peaceful" possession requirement.
"Passive" Ownership: You own a vacant lot and do nothing but pay taxes. While paying taxes is good, it is not an absolute defense. The law favors active possession. Defense: Your use doesn't have to be a major construction. Planting trees, installing robust fencing, or even leasing the land for a nominal fee under a formal contract demonstrates dominion and active ownership.
Failure to Periodically Verify Your Title: Legal issues can arise without your knowledge. Defense: At least once a year, visit the Registro de la Propiedad in your canton and request a Certificado de Gravámenes (Lien and Encumbrance Certificate). This document costs approximately $10.00 and provides a complete history of your property, showing your registered ownership and, crucially, revealing if any lawsuits (inscripción de la demanda) or other claims have been filed against it.

Your Legal Defense Checklist in Cuenca

[ ] Title Verification: Do you have a certified, recently issued copy of your registration from the Registro de la Propiedad?
[ ] Clear Boundaries: Is your property physically and clearly demarcated with fences, walls, or permanent markers?
[ ] Formal Agreements: Is anyone using your land? If so, do you have a signed contrato de arrendamiento (lease) or contrato de comodato in place?
[ ] Proof of Dominion: Do you have a dated record (photos, receipts, notarized statements) of your visits, maintenance activities, or improvements on the property?
[ ] Tax Records: Are your impuestos prediales paid in full and on time, every year?
[ ] Annual Title Check: Have you pulled a Certificado de Gravámenes within the last 12 months?

⚠️ Legal Alert: When to Immediately Engage an Attorney

If you discover someone has constructed a dwelling on your land, if a neighbor has moved a boundary fence, or if you receive any official notification (citación) from a court, do not attempt to resolve it yourself. These situations require immediate legal intervention. Deadlines in the Ecuadorian legal system are rigid, and a failure to respond correctly and on time through a licensed attorney can result in a default judgment against you, potentially causing you to lose your property.

Conclusion: Vigilance is the Best Defense

Prescripción adquisitiva de dominio is a powerful legal reality in Ecuador. It serves a purpose within the country's legal framework, but it can present a serious risk to unwary or absentee owners. The law, however, is not designed to arbitrarily strip property from its rightful owners. It is designed to resolve situations where ownership is unclear or abandoned.

By ensuring your title is impeccably registered, maintaining a physical and legal presence on your property, formalizing any third-party use with proper contracts, and acting decisively against any encroachment, you can effectively eliminate the risk of an adverse possession claim. Your Ecuadorian property is a significant investment; protect it with the diligence it deserves.