Can property lent under a commodatum agreement be acquired by prescription?

A commodatum is a contract commonly used in family, business, or trust-based relationships. It refers to the free loan of property for use, with the obligation to return it once the agreed time or purpose has been fulfilled.

The Ecuadorian Civil Code defines commodatum it’s Article 2077 as a contract through grants a non-fungible item to another for use it and later returned. This obligation to return the property is essential to understand why a good delivered under commodatum cannot be acquired through prescription.

For acquisitive prescription to apply, the law requires possession. Article 715 of the Civil Code states that possession means holding a thing with the intention of acting as its owner.

In a commodatum agreement, the borrower clearly recognizes that the property belongs to someone else and that the use is temporary. For this reason, the borrower is considered a mere holder, not a possessor.

Acquisitive prescription, regulated in Article 2392 of the Civil Code, allows a person to acquire ownership of property after possessing it for a certain period of time under specific conditions. However, because commodatum only creates holding and not possession, the borrower cannot acquire the property through prescription.

A commodatum agreement does not create possession that can lead to prescription. This situation would only change if there is an interversion of title, meaning that the holder begins to act as the owner and denies the rights of the real owner. This change must be clear and proven.

As long as the commodatum relationship continues and the borrower recognizes the owner’s rights, the passage of time will not allow the borrower to acquire the property through prescription.