Acquisitive prescription of a boundary line

The possession requirement is decisive here. But what exactly does the legal concept of “possession” mean? And if you have lost ownership of your piece of land through prescription, what can you do?

Definition of possession

The Civil Code defines possession as “holding an asset for oneself” (section 3:107 of the Dutch Civil Code). When does someone hold an asset for themselves? What matters is whether someone exercises factual control over the asset while claiming to be the owner. Actual ownership is not required, as long as the possessor acts as if they were the owner.

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Factual possession

Taking land into possession can happen by placing a fence, hedge, barbed wire or similar boundary on the property line. If a piece of land, then appears to be part of your garden, possession is quickly established. In that case, there is factual control over the land and it will often appear as though you are exercising that control in the capacity of owner. However, pruning a bush or planting something on a piece of land next to your garden is not sufficient for this.

Underlying arrangements

There is no possession if a person rents, leases or uses something with the owner’s permission. In those cases, the person does not hold the asset for themselves, but for another person on the basis of the underlying arrangements. For example, a tenant farmer cannot claim ownership of the land through prescription after 20 years.

Verjaring

If possession without title has continued for 20 years or more, without the owner having complained in the meantime, then the owner’s claim to end that possession becomes time-barred. The owner can no longer reclaim the land, and the possessor becomes the owner. The same applies if the land belongs to the municipality. Please note: in 2017, the Dutch Supreme Court held that under special circumstances the original owner may nevertheless successfully reclaim the land. For more on this, see the blog: Acquisitive prescription and property boundaries.

Conclusion on prescription

If:

1. you have visibly exercised factual control over a piece of land for more than 20 years, and
2. during that period you have visibly behaved as the owner of the land without the actual owner complaining about it, and
3. there were no arrangements underlying this, such as a tenancy agreement or permission from the owner,

then you may be able to acquire ownership by relying on extinctive prescription.

You will, however, need to be able to prove this. It is also necessary to check whether there are any special circumstances, such as those referred to in the above-mentioned Supreme Court judgment.

Prevent prescription

If you are the owner and a third party has been using your land for a long time, make sure that any arrangements are recorded in writing so that there can be no doubt that your neighbour is holding the land for another person, and not for themselves. In that case, extinctive prescription cannot apply. If your neighbour does not agree to this, consult a lawyer so that you can intervene in time and prevent prescription. The lawyer can also advise you on the options for reclaiming ownership.

Contact & advice

If you have any questions, please feel free to contact us.