Is ordinary usucaption «contra tabulas» possible?

Abstract

The psychological or ethical concept of good faith is an issue which has concerned both doctrine and jurisprudence. With regard to the latter, our Supreme Court has, in recent years, evolved from a position of radical psychology (good faith in the field of rights in rem, according to STS 07/17/1999, has nothing to do with machinations and deception, but purely and simply with the belief or ignorance that the proprietary ownership of the transferor was accurate) to an ethical position which demands, within the scope of rights in rem, an "ethical responsibility of "basic" diligence which, where appropriate, renders the error excusable" (for all, STS 05/19/2015). The repercussions of this recent jurisprudential evolution are notable not only within the scope of the third-party mortgagee of article 34 of the Mortgage Law, but also with regard to the concept of the "contra tabulas" usucapient (against registered ownership). Thus, this article will analyse, on the basis of said slow jurisprudential evolution, whether a "contra tabulas" usucapient in good faith can exist in Spanish law, as well as tackling the question of whether or not the third party of article 36 of the Mortgage Law can be in good faith, and therefore, a third-party mortgagee.