Understanding 'Prescripción Adquisitiva de Dominio': Can Someone Claim Title to Your Abandoned Property in Arequipa?

As a seasoned real estate broker and technical writer based in Arequipa, I've dedicated my career to navigating the complexities of property ownership in Peru, especially for our valued foreign investors. One of the most critical, yet often misunderstood, aspects of Peruvian property law is Prescripción Adquisitiva de Dominio, commonly known as adverse possession. This vital legal mechanism allows a person to acquire legal title to a property they have continuously occupied under specific, stringent conditions, even if they are not the registered owner. For those investing in Arequipa real estate, a comprehensive understanding of this concept is not merely academic; it is a fundamental pillar of protecting your investment.

What is Prescripción Adquisitiva de Dominio (PAD)?

In essence, Prescripción Adquisitiva de Dominio (PAD) is a legal process by which a non-owner can acquire ownership of real estate through continuous, public, peaceful, and uninterrupted possession for a period stipulated by Peruvian law. The underlying principle is that society benefits when property is actively used, maintained, and its ownership status is clear. If a registered owner effectively neglects their property, failing to exercise their ownership rights over a prolonged period, while another party acts demonstrably as the owner, the law may eventually transfer title to this long-term possessor.

It is crucial to understand that this is neither a swift nor an easy process for the claimant, nor is it an immediate threat to a vigilant owner. The burden of proof for every condition rests entirely with the individual attempting to claim title. However, for foreign investors who might not be physically present in Arequipa year-round, or who might own vacant lots or properties intended for future development, the risk becomes significantly more pertinent, necessitating proactive vigilance.

The Two Pathways to Prescripción Adquisitiva in Peru

Peruvian law, specifically Article 950 of the Civil Code, establishes two main types of Prescripción Adquisitiva, distinguished primarily by the required duration of possession and the claimant's initial intent:

Ordinary (Corta) Prescripción – 5 Years: This pathway requires:
- Possession for 5 years: Continuous and uninterrupted.
- Just Title (Justo Título): The possessor must hold a document that purported to transfer ownership to them, even if that document was ultimately defective (e.g., the seller was not the true owner, or there was a procedural flaw in the transaction). This indicates that the possessor was not merely a squatter, but a buyer who believed they were acquiring legitimate title through a legal instrument.
- Good Faith (Buena Fe): The possessor must have genuinely believed, at the time of acquiring possession, that they were purchasing the property from the rightful owner and were acting legally. They were unaware of any defect in the title that would invalidate their acquisition.
This type of PAD is less commonly associated with truly "abandoned" properties and is more applicable to situations where a flawed, yet seemingly legitimate, transaction occurred, and the buyer acted in good faith, believing they were the rightful owner.
Extraordinary (Larga) Prescripción – 10 Years: This is the pathway most relevant to properties that appear "abandoned" or neglected by their registered owners, making it a critical concern for absent foreign investors. It requires:
- Possession for 10 years: Continuous, uninterrupted, public, and peaceful.
- As Owner (Como Propietario/A Título de Dueño or Animus Domini): The possessor must act with the clear intent to be the true owner, exercising all rights and duties typically associated with ownership. This means performing acts of ownership, not merely as a tenant, caretaker, or squatter who acknowledges another's superior title.
- No requirement for Just Title or Good Faith: Unlike ordinary prescription, the possessor does not need a defective title document or to have believed they were acting legally at the outset. This implies that a direct squatter can, theoretically, acquire title after 10 years if all other rigorous conditions are met and the owner takes no legal action.
For foreign investors, the 10-year extraordinary Prescripción poses the greater risk, as it applies to properties where the owner's absence or inaction allows a third party to establish de facto control over a prolonged period.

Key Elements of Valid Possession (Posesión Útil)

Regardless of the type of PAD claimed, the possession must demonstrate specific, undeniable characteristics to be legally recognized:

Continuous (Continua): The possession must not be interrupted by the registered owner or third parties for the entire statutory period. While not necessarily requiring constant physical presence, it means the possessor maintains consistent control and oversight over the property. Any significant interruption – such as the registered owner reclaiming possession, initiating a formal eviction lawsuit, or physically expelling the possessor – breaks the continuity, and the legal clock for prescription resets.
Peaceful (Pacífica): The possession must be acquired and maintained without violence, threats, or active legal challenge from the registered owner. If the owner has actively opposed the possession through legal means (e.g., filing an eviction lawsuit or taking administrative action) within the prescription period, the possession is not considered peaceful, and thus, cannot lead to acquisition of title.
Public (Pública): The possession must be open, visible, and known to neighbors, local authorities, and the community. It cannot be clandestine or hidden. This is typically evidenced by actions such as visible improvements to the property, residing openly, paying property taxes, registering utility services in their name, and being recognized in the community as the apparent owner.
As Owner (Como Propietario/A Título de Dueño or Animus Domini): This is perhaps the most critical and difficult element for a claimant to prove. The possessor must act with the distinct intent to be the owner, exercising all the rights and responsibilities typically associated with full ownership. This means making decisions about the property's use, excluding others, investing in improvements, and crucially, paying owner-related expenses like annual property taxes (Impuesto Predial) and municipal service fees (Arbitrios) in their own name. If the possessor acknowledges another's ownership (e.g., by paying rent, even informally, or by performing caretaker duties), they cannot claim PAD, as they lack the animus domini.

The Process of Claiming Title through PAD: A Peruvian Perspective

For a party to successfully claim title through Prescripción Adquisitiva de Dominio in Peru, they must rigorously follow a strict legal process, which can be pursued either judicially or, under specific conditions, notarially:

Gathering Evidence (The Cornerstone of the Claim): The claimant bears the entire burden of proof and must meticulously document their continuous, peaceful, public, and owner-like possession. This typically includes:
- Financial Records: Original receipts for Impuesto Predial (annual property tax) and Arbitrios (municipal services fees like trash collection, parks maintenance) paid consistently in their name for the required period. Utility bills (electricity, water, internet) also registered in their name and paid regularly.
- Improvement Evidence: Photos, receipts, contracts, and permits for construction, renovation, or significant maintenance work performed on the property, demonstrating investment and owner-like care.
- Witness Testimony: Sworn statements from impartial neighbors, local authorities, or community leaders (e.g., from the Junta Vecinal) who can attest to the possessor's long-term, public, and owner-like actions.
- Official Correspondence: Any letters, permits, or documents from municipal authorities or other public entities addressed to the possessor at the property, recognizing their presence or actions.
Legal Representation: Your Indispensable Tool: This process is inherently complex, demanding specialized legal knowledge and experience. Engaging a reputable, local Peruvian real estate lawyer in Arequipa is not merely advisable; it is absolutely essential for the claimant to navigate the intricate legal framework, prepare the necessary robust documentation, and effectively represent them in court or before a notary.
Choosing the Legal Pathway:
- Judicial Route (Vía Judicial): This is the most common and robust path, especially if there is any potential for dispute from the registered owner or third parties, or if the property is large, rural, or has complex boundaries. The claimant files a lawsuit (a demanda de Prescripción Adquisitiva) against the registered owner (or their heirs, if deceased) in a Civil Court in Arequipa. The court will meticulously review all presented evidence, hear testimony, conduct ocular inspections, and ultimately issue a judicial sentence. This process can be lengthy, often taking several years (typically 3-5 years, sometimes more, depending on caseload, appeals, and complexity), but a favorable judicial sentence provides the strongest and most definitive title.
- Notarial Route (Vía Notarial): This administrative process, handled by a public notary in Arequipa, is significantly faster but only viable under very specific and limited conditions, primarily governed by Law 27157 (for urban properties) and Law 27333.
  - No Opposition: There must be absolutely no opposition or objection from the registered owner or any third party during the entire notarial process. If any objection arises, the notary must immediately cease proceedings, and the claimant will then be compelled to pursue the judicial route.
  - Specific Property Types: Generally applies to urban properties with a clear, established history of possession, particularly residential units. It is less common for large, undeveloped land plots.
  - Process: The claimant submits a formal request with all supporting documentation to a notary. The notary publishes legal edicts in the official gazette (El Peruano) and a local Arequipa newspaper (e.g., El Pueblo or La República) to inform the public and solicit any objections. A waiting period (typically 25 business days) follows. If no opposition is received, and all conditions are met, the notary issues a formal act (Acta Notarial) confirming the acquisition of title.
Registration at S.U.N.A.R.P.: The Final Step: Once a judicial sentence definitively grants title, or a notarial act confirms it, the final and most crucial step is to register the new ownership at the Superintendencia Nacional de los Registros Públicos (S.U.N.A.R.P.) in Arequipa. This public registration makes the new ownership legally binding, visible to all, and provides full legal protection against third parties. Without this essential S.U.N.A.R.P. registration, the acquisition of title, while legally recognized, is not fully effective or enforceable against good-faith third parties who might later purchase from the prior registered owner.

How to Protect Your Arequipa Property from PAD Claims: Due Diligence for Foreign Investors

For foreign investors, especially those who may not reside in Arequipa full-time or those holding undeveloped land, proactive management and consistent vigilance are your absolute best defenses against Prescripción Adquisitiva.

Regular Property Inspections: Periodically visit your property yourself or, more crucially, engage a trusted local representative (a professional property manager, a lawyer, or a reliable contact with a formal agreement) to conduct regular, documented inspections. Any signs of intrusion, unauthorized occupation, or "improvements" being made by others should be immediately and thoroughly investigated and addressed legally.
Maintain Active Property Management: If the property is vacant, consider professional property management services. This ensures someone is actively overseeing the property, securing it, and addressing any issues promptly. This active presence itself deters potential claimants.
Always Pay Taxes and Utility Bills in Your Name: This is paramount. Ensure your Impuesto Predial (annual property tax) and Arbitrios (municipal service fees) are always paid on time and that the receipts are diligently kept in your name or the name of your owning entity. Similarly, ensure utility bills (electricity, water) are either in your name (even if services are minimal for a vacant property) or demonstrably paid by you. A common and effective tactic for PAD claimants is to start paying these bills to demonstrate "owner-like" behavior.
Physical Security Measures: Secure your property effectively with robust fences, strong locks, and clear, visible warning signs (e.g., "Propiedad Privada," "Prohibido el Paso – Private Property, No Trespassing"). A physically secure and clearly marked property is significantly less likely to attract squatters or unauthorized occupants.
Organize and Retain All Documentation: Maintain meticulous records. Keep all your purchase documents, S.U.N.A.R.P. registration, tax receipts, utility bills, maintenance records, and any official correspondence pertaining to your property organized, digitized, and physically accessible. These documents are your primary and indispensable defenses if a claim ever arises.
Empower Local Legal Representation with a Power of Attorney (Poder): If you are frequently abroad, it is highly advisable – almost essential – to grant a formal Poder (Power of Attorney), notarized and apostilled, to a trusted local lawyer in Arequipa. This legal instrument allows them to act swiftly on your behalf, initiate legal actions (such as eviction proceedings or property defense), or respond to any legal challenges without you needing to travel to Peru immediately. This is a critical "safety check" for remote owners.
S.U.N.A.R.P. Vigilance and Alert Services: Peru's S.U.N.A.R.P. system allows you to periodically check the status of your property's registration online or in person at the Arequipa S.U.N.A.R.P. office. Furthermore, inquire about S.U.N.A.R.P.'s alert services (e.g., "Alerta Registral"). These services can notify registered owners via email or text message of any attempts to access or modify the property's registration, providing an early warning system against fraudulent or adverse claims.

Local Context/Warning: Arequipa Specifics

Arequipa, with its dynamic real estate market, rapid urban expansion, and unique socio-economic characteristics, presents specific considerations regarding Prescripción Adquisitiva:

Historic Properties: The UNESCO World Heritage-listed Historic Center of Arequipa, along with charming traditional neighborhoods like San Lázaro, Yanahuara, and Cayma, boast beautiful sillar (white volcanic stone) properties. While immensely valuable, vacant or neglected historic properties can still be targets. Owners of such properties must be extra diligent, as the stringent regulations by the Ministerio de Cultura regarding renovations, while deterring some unauthorized occupants from making visible "owner-like" improvements legally, do not prevent occupation itself.
Peri-Urban Expansion and Undeveloped Land: Areas on the fringes of Arequipa, particularly in rapidly growing districts such as Cerro Colorado, Yura, parts of Tiabaya, and areas near La Joya, are experiencing significant urban sprawl. Large tracts of undeveloped land, especially if rural or semi-urban and not clearly defined, fenced, or actively managed, are highly vulnerable to informal occupation (invasiones) and subsequent PAD claims. Historical ownership records might be less precise in these transitional zones, and municipal oversight can be slower to respond, increasing risk.
Inherited Properties and Undivided Co-ownership: Properties inherited by multiple heirs, especially if some reside abroad or if the inheritance process (Sucesión Intestada) has not been fully completed and registered, are particularly vulnerable. When there is fragmented or unclear ownership, it creates an opportunity for a third party (or even one of the co-owners, under specific conditions) to initiate a PAD claim against the perceived "abandonment" by the collective ownership.

Warning Signs Your Property Might Be Targeted:

As a diligent owner, be alert to any of the following indicators that your property might be attracting unwanted attention:

Unfamiliar individuals or groups consistently present on or near your property.
Locks, fences, or access points to your property appear tampered with, damaged, or changed without your authorization.
Utility services (water, electricity) at your vacant property are mysteriously active or disconnected, or you receive bills in an unfamiliar name.
Neighbors, local community leaders, or municipal authorities mention unfamiliar people living on or making "improvements" to your property.
Unsolicited offers to buy your property from unknown parties who seem to possess unusual details about its interior, condition, or history.

Conclusion

Prescripción Adquisitiva de Dominio is a legitimate, albeit stringent, legal pathway in Peru, fundamentally designed to bring legal certainty to long-term de facto situations of possession. For foreign investors in Arequipa, this means that merely purchasing property is not enough; "abandoning" it – by failing to exercise active oversight, fulfill owner responsibilities, and maintain a visible presence – creates a significant and avoidable vulnerability. Proactive due diligence, regular and documented monitoring, meticulous retention of all property documentation, and, most crucially, strong and accessible local legal representation are your most effective safeguards against losing your valuable Arequipa real estate investment. Protect your patrimony with informed action.

⚠️ Legal Notice: Consult a Local Lawyer. The information provided in this article is for general informational purposes only and does not constitute legal advice. Peruvian real estate law, and particularly the nuances of Prescripción Adquisitiva de Dominio, are complex and highly specific to individual circumstances. Before making any investment decisions or taking any action related to your property, it is imperative to consult with a qualified, licensed Peruvian real estate attorney who specializes in property law in Arequipa.

Ready to secure your Arequipa property investment with expert guidance and unwavering local representation? Contact ArequipaRealEstate.com today for personalized advice and trusted local assistance.