20 November 2024
We regularly handle disputes concerning the acquisition of land through prescription.
Most clients are familiar with the extinctive prescription period of more than twenty years. The acquisitive prescription after a lapse of ten years is sometimes unnecessarily overlooked, as the good faith required for this is not easily assumed. In this article, I explain why, under certain circumstances, possessors can still successfully invoke acquisitive prescription.
If someone performs acts of possession continuously for 10 years and is in good faith, one can invoke acquisitive prescription (Article 3:99 of the Dutch Civil Code). It must be assessed in each specific case whether, according to general commercial practice, possession has been established. In any case, it must be clear to the outside world that acts of possession are taking place. Possession must be ‘public and unambiguous.’
Fencing a plot may qualify as an act of possession, while planting a single shrub or tree does not necessarily constitute an act of possession. However, multiple acts near a property boundary, when combined, may qualify as an act of possession.
A possessor is not in good faith if they had or should have had knowledge of the actual (legal) situation (3:11 DCC). Article 3:23 DCC further provides that, with regard to immovable property, there can be no good faith if the possessor could have been aware of the legal reality by consulting the public registers (the Land Registry).
It is sometimes incorrectly inferred from this that reliance on Section 3:99 of the Civil Code cannot succeed if cadastral measurements or drawings show a different property boundary. After all, the cadastral map does not form part of the public registers as referred to in Sections 3:23 and 3:16 of the DCC,[1] but the title and delivery deeds do. However, even if the dimensions specified in the deed of delivery appear to differ from the actual surface area, this does not automatically mean that the possessor is not acting in good faith. What matters is whether the content of the deed of delivery should have given cause for doubt or further investigation. If the actual owners also accept the actual property boundary without objection, good faith is more likely to be assumed.[2]
In summary, it must be determined on a case-by-case basis whether acts of public possession have occurred for 10 years and whether the possessor is in good faith under the circumstances. If these questions are confirmed, a claim of acquisitive prescription can be made. For the record, under the prohibition on interversion in Article 3:111 of the Civil Code, a holder (such as a lessee or borrower) cannot, in principle, become a possessor, and therefore cannot successfully invoke acquisition of property by prescription.
If good faith is not present, a possessor can still acquire ownership pursuant to Article 3:105 (1) in conjunction with 3:314 (2) of the Dutch Civil Code. Public and unambiguous acts of possession must then have taken place continuously for at least 20 years. In that case, a successful reliance on extinctive prescription can be achieved.
Until a few years ago, this seemed to be the end of the matter. However, the Supreme Court, in its judgment of 24 February 2017, considered that if a piece of land has passed into ownership by prescription, the true owner may be able to bring a tort action against the new owner. As a result, the land might have to be transferred back to its original owner. Here, it is not so much the property law qualification of good faith that needs to be taken into account, but rather the question of whether there is an (attributable) tort by the possessor.
The assessment of a reliance on acquisitive or extinctive prescription is highly case-specific, allowing for different arguments for both plaintiff and defendant. The aforementioned Supreme Court judgment may provide guidance under certain circumstances.
If you have any questions about this article, please feel free to contact us.
[1] A-G E.B. Rank-Berenschot 19 juni 2020, ECLI:NL:PHR:2020:617, par. 2.15.
[2] Hof Arnhem-Leeuwarden 10 december 2019, ECLI:NL:GHARL:2019:10630, r.o. 4.3 t/m 4.15.
