23 June 2021

Owner by prescription? Perhaps not after this revelation!

By Glenn Kerver

Acquisition by prescription is considered by many to be unjust.

How can a non-proprietor (often aware that a piece of land does not belong to them) become owner by behaving as if they owned it?

The judgment of the Supreme Court of 24 February 2017 and subsequent case law of the District Court of Rotterdam of 19 July 2017 sheds new light on acquisitive prescription in the event of unlawful confiscation. I will tell you more about that in this blog.

Prescription is a form of original acquisition of ownership. There are two variants: the acquisitive prescription and the extinctive prescription.

Acquisitive prescription

A person can become owner of a piece of land by prescription by possessing it continuously for ten years and by acting in good faith. The latter roughly means that he could not reasonably have been aware that the plot of land was not his property. What falls under ‘possession’ has become clear in case law. For example, placing a fence or building a well on someone else’s land can be qualified as an act of possession. In addition, it is important that these acts of possession are ‘public and unambiguous’.

Extinctive prescription

The major difference between acquisitive and extinctive prescription is the presence of good faith. If you are not in good faith, you can nevertheless become the owner of a piece of land through extinctive prescription. This requires that you are the owner and that you act as the owner when a claim for return expires. The claim lapses if the actual owner has not taken any action against the seizure for twenty years.

Why does the statutory limitation exist?

It is very important for legal certainty that it is clear to whom a piece of land belongs. When the legal owner apparently did not take action for ten to twenty years, the importance of legal certainty justifies the transfer of ownership to the owner. This can lead to an angry neighbour deliberately erecting a fence on someone else’s land, and with the result that twenty years later he has legally obtained the plot of land from that other person.

What applies to the right of ownership on a piece of land may also apply to other rights such as right of way, right of superficies and other easements.

Supreme Court judgment

The above explanation has been the practice for years, until the Supreme Court, in its above-mentioned judgment of 24 February 2017, came up with a new, additional vision. This case concerned a couple who owned a house in a wooded area in North Brabant.

At some point, the couple took possession of a piece of forest, knowing that the land belonged to the municipality. The couple clearly behaved as owners: the seized area is bordered by wire mesh and fencing, there is a wood storage, and there is even a real jeu-de-boules court. Now that this situation has persisted for at least twenty years, the couple has become the owner of the piece of forest land. After all, good faith is not a requirement for extinctive prescription.

So far, it’s a fairly predictable statement. However, the Supreme Court ends with a superfluous consideration, which can be seen as legal indication for similar cases: although the piece of land has passed into ownership in a property law sense, the real owner may be able to bring a claim in tort against the new owner. Because the extinctive prescription itself is seen as the event causing the damage and not the taking possession itself, the claim for tort has often not yet become statute-barred. The original owner can claim his damage in money, but can also aim for compensation in kind, namely reclaiming the land!

Rotterdam court decision

The Supreme Court did not consider the matter any further substantively, because this was beyond its jurisdiction in this case. However, a few months later the District Court of Rotterdam heard a case in which it ruled, following the judgment of the Supreme Court, that the original owner had a tort claim against the new owner. In this specific case, however, the original owner could not reclaim the land because, according to the Court, he had not substantiated why the return of the land should be preferred to the payment of compensation.

The decision of the District Court of Rotterdam certainly leaves the door open for future cases, where it can be demonstrated that compensation in kind is preferable. This means that one can become the owner by prescription, but still have to transfer the ownership back to the original owner.

Further information

Would you like to know more about the conditions for obtaining by statute of limitations, because you think you have become the owner or precisely because you fear a claim from your neighbours? Then you can always contact me.

Glenn Kerver

Glenn Kerver


Glenn works in real estate & tenancy law and liability law.

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