Adverse possession in bad faith resulting from a crime: tensions between the incentive for invasions and legal regularization.

Abstract

This article offers a critical examination of the adverse possession regime acquired in bad faith when the possession originates from the commission of a patrimonial crime, particularly dispossession and unlawful land invasion. It explores the inherent tension between safeguarding legitimate property rights, ensuring the penal sanction of criminal acts, and providing legal certainty through the stabilization of long-standing factual situations. Through a systematic analysis connecting civil law and criminal law, the study demonstrates that current regulations allow possession derived from a crime to be converted into ownership once the criminal action is extinguished, resulting in a pragmatic but problematic solution that places state inertia above material justice for victims. The article shows how this normative framework effectively transforms prescription into an indirect mechanism for legally laundering property obtained through criminal conduct, distorting its social purpose and generating perverse incentives for irregular occupation. Drawing on doctrinal, jurisprudential, and legislative sources, the analysis argues that the cleansing of defects through the mere passage of time should not apply when possession has a criminal origin, as this undermines systemic coherence and weakens the protection of dispossessed owners. The study concludes by proposing legislative reforms aimed at severely restricting adverse possession in cases of bad faith arising from crime, strengthening victim protection, preventing the transfer of illicit benefits, and establishing mechanisms of publicity and mandatory compensation to ensure that acquisitive prescription is not used as a tool to legitimize criminally obtained possession.