Court of Cassation Order No. 15653 of June 5, 2024 concerns an owner who responds to an adverse possession claim by arguing that use of the property was merely tolerated.
Raising the defence on appeal
The argument is a defence in the broad procedural sense and may be raised for the first time on appeal. However, the relevant facts must be established from evidence gathered in compliance with the applicable procedural deadlines. Permission to raise the defence on appeal does not automatically reopen the opportunity to introduce new evidence.
The provisions to distinguish
Article 1144 of the Civil Code provides that acts performed with another person’s tolerance cannot establish acquisition of possession. Article 1158 instead governs acquisition of ownership of immovable property and other rights in rem over it through twenty years of continuous possession. Procedurally, the prohibition in Article 345 of the Code of Civil Procedure cited in the headnote concerns defences reserved exclusively to the party and which the court cannot raise of its own motion.
