23 June 2021
Have you owned a piece of land belonging to your neighbour for more than 20 years, without protest?
The land may have become your property due to acquisitive or extinctive prescription.
The possession requirement is decisive here. But what exactly is meant by the legal term ‘possession’? And if you have lost ownership of your plot of land because of acquisitive or extinctive prescription, what can you do?
The Dutch Civil Code defines possession as ‘keeping a property for oneself’ (art. 3:107 BW). When does someone keep a property for themselves? What matters is whether someone exercises actual power over the property with the pretence of owning it. Actual ownership is not required as long as the owner pretends to own it.
Taking possession of the land can occur by placing a fence, fence, barbed wire or hedge on the property boundary. If a piece of land seems to belong to your garden as a result, there is soon talk of possession. After all, in that case there is actual power over the land and it will often appear as if you are exercising power in the capacity of owner. However, pruning a shrub or planting something on a piece of land next to your garden is not enough. At any point, it will strongly depend on the circumstances of the case.
There is no question of possession if one rents, leases or uses something with the permission of the owner. In those cases one does not keep the property for oneself but keeps it for someone else on the basis of the underlying agreements. For example, a tenant cannot claim ownership of the land after 20 years because of statute of limitations. A holder/possessor cannot become an owner, due to prohibition on altering possession (Section 111 of Book 3 of the Dutch Civil Code).
If the untitled possession has lasted for 20 years or longer, without the owner having complained about this in the interim, then the owner’s claim for termination of the possession will lapse. The owner can no longer claim his land and the new owner becomes the owner. The foregoing also applies if it concerns land belonging to the municipality. However, recent case law from the Supreme Court learns that the previous owner under circumstances can claim back his land if taking possession qualifies as an unlawful act.
You may also enjoy: Owner by prescription? Perhaps not after this revelation!
If you:
(1) have manifestly exercised actual control over a piece of land for more than 20 years, and
(2) you have visibly behaved as the owner of the land during that period without the actual owner having complained,
(3) while this was not based on agreements such as a lease or owner’s consent, you may be able to obtain property by invoking acquisitive or extinctive prescription.
You must be able to prove the foregoing.
Are you the owner and has a third party been using your land for a long time? In that case, make sure that agreements are laid down in writing so that there is no doubt that your neighbour ‘holds the plot for someone else’ and not for himself. In that case, there can be no question of acquisitive or extinctive prescription. Does your neighbour disagree with this? Consult a lawyer so that you can intervene in time to prevent prescription. The lawyer can also advise you on the options for reclaiming the property.
If you have any questions, you can of course contact me.
