PHILIPSBURG — A five-year-old ruling from the Supreme Court about a land dispute between a family and the municipality of Heusden sheds some more light on the intricacies of prescriptive rights. The ruling, dated February 24, 2017, is a clear warning for real estate owners: if they don’t pay attention they could easily lose what they thought was theirs.
The municipality of Heusden, a fortified city in the vicinity of Den Bosch, went to court three times in an attempt to regain ownership of a parcel of land the family considered as its property. The first time the court sided with the municipality. On appeal, the citizen won the case. Therefore, the municipality took the case in cassation to the Supreme Court.
Ancestors of the defendants, in this case, became the owners of a parcel of land in the city of Drunen on February 23, 1973. Behind it was a forested parcel that belonged to the municipality. At a certain moment (the ruling does not mention a date but later stipulates that it must have been in 1974 or 1980) the ancestors fenced off a piece of the forested parcel and added it to their own garden. They built two cabins on this land, created a wood-storage facility and built part of a jeu de boules track.
More than twenty years later, on January 8, 2003, the current owners received a letter from the municipality: there were plans to do some work on the land and it, therefore, terminated the user-agreement per April 1, 2003. The owners replied that no user-agreement existed and that they had obtained ownership of the land through prescriptive rights. To which the municipality answered that there is an agreement if this has been reached verbally.
The municipality asked the court to order the citizens to vacate the land. The other party asked for a declaration that it had become the owner of the land through prescriptive rights and to order the municipality to cooperate with a recording of their rights at a notary.
A requirement for obtaining ownership through prescriptive rights is “undisputed possession as owner.” The Supreme Court ruling stipulates that this situation exists “if the possessor behaves in such a way that the owner against whom it claims prescriptive rights can only conclude that the possessor pretends to be the owner.”
The municipality argued that the citizens only behaved as tenants or users, but the Supreme Court disagreed.”This is not plausible given the actions of the defendants.” With this remark, the ruling refers to the fact that the citizens had closed and fenced the parcel behind their garden. It also ruled that they were not tenants and that there was no user-agreement. “The defendants can call on undisputed and public possession.”
The court ruled that the actions of the defendants qualify as exercising factual power with the pretense of being entitled to the land. “The actions were public and the municipality could have been aware of them. It has not been established that the defendants secretly took possession.”
The municipality waited until 2002 or 2003 to inspect the perimeters of its property. But according to the court, this does not mean that the possession by the defendants was not knowable to the municipality.
“Possession had lasted more than twenty years when the municipality sent its letter on January 8, 2003.”
Here is another interesting detail. The term for prescriptive rights begins on the day after somebody who is not entitled to a property has taken possession. “It is not required that the party that is legally entitled to that property knows about these actions that have resulted in the loss of possession. It is enough that these actions were knowable.”
That is however not the end of the story for property-owners who lose their possession through prescriptive rights. They have the option to claim damages based on unlawful act. “This could result in a situation whereby the possessor is ordered to return the property to the original owner.”
The Supreme Court supports this argument with a quote from a minister in 2004 about this issue. “A possessor indeed becomes the owner of a stolen property after twenty years, also if he has not acted in good faith. This does however not exclude that after the end of the prescriptive rights-term the thief and the buyer can be held responsible based on unlawful act. In that case, compensation can be offered in kind by returning the stolen property to its owner.”
Related links:Column – LandjepikA legal review of Prescriptive RightsHow to obtain land-ownership through prescriptive rightsUitspraak Hoge Raad in zaak Eigendomsverkrijging van perceel grond door bezitter te kwader trouw ingevolge verjaringGemeenten staan niet met lege handen bij verlies van gemeentegrond door (bevrijdende) verjaringHet bezitsvereiste en verkrijgende verjaring door een bezitter te kwader trouwGemeente Heusden wint rechtszaak over gemeentegrond