Land grabbing: the legal options when losing ownership of land
There may be a dispute between neighbors about who owns a particular piece of land. Such a dispute may arise if at any time one of the neighbors places a yard fence in such a way that it takes possession of a piece of land owned by the other. The owner has the option of claiming his property (or filing a revindicatory action). However, such a claim cannot be brought after a period of time due to acquisitive prescription.
Recently, the Supreme Court issued a judgment on a tort claim against the party who acquired the property at the expense of the other. Compensation in kind was claimed, in the form of redelivery of the land. In this article, I explain the relevant legal regulations and discuss the recent Supreme Court ruling and also an earlier ruling on land grabbing.
What is meant by ownership and possession?
In land grabbing judgments, the concepts of ownership and possession are important. I briefly explain these legal concepts.
What is a property right?
The right of ownership is the most comprehensive right a person can have over a thing (Article 5:1 paragraph 1 Civil Code). In principle, the owner is free to use the thing to the exclusion of all others (Article 5:1 paragraph 2 BW).
What is possession?
By “possession” is meant that a person keeps a good for himself (Art. 3:107 paragraph 1 BW). Whoever keeps a good is presumed to keep it for himself (Art. 3:109 BW). Possession can be obtained by taking possession. One takes possession of a good by exercising actual power over it (Art. 3:113 paragraph 1 DCC). If possession is provided to another person, the acquirer is enabled to exercise the power over the thing that the provider of possession could exercise over the thing (Art. 3:114 BW). Whether someone is a possessor must be answered according to the conception of traffic, the legal regulation on the subject and, for that matter, on the basis of external facts.
Ownership and possession may be in different hands
Ownership and possession need not be in one hand. Suppose I own a piece of land, but my neighbor, by erecting a hedge, has actual power over a piece of my land, I am still the owner, but my neighbor is the possessor of the piece of land he has demarcated for himself.
How can you claim your property?
An owner of an object is authorized to claim it from anyone who holds it without right (Art. 5:2 Civil Code). This is called a revindicatory claim. This claim can also be brought in court. So in the example of my piece of land that has been taken into possession by my neighbor, I can claim that the land be returned to my control. This will then mean that the hedge must be removed so that I regain actual power over my piece of land.
Loss of property due to acquisitive prescription
As mentioned above, ownership and possession sometimes diverge. The legislature intended that such a situation should not continue indefinitely. The legal and factual situation must come together again at some point, is the idea. The legal situation then follows the factual situation (and not the other way around).
Therefore, the law provides that a possessor in good faith acquires rights to the property at a certain time (Art. 3:99 paragraph 1 of the Civil Code). If a person thinks in good faith to have become the rightful owner of a movable thing (and bearer or order rights), he can acquire the right to the good after possession of three years, other goods by an uninterrupted possession of 10 years. There is a different rule for cultural goods. On this good faith possession I will not go into further detail.
Loss of property to bad faith possessor
Even a possessor who is not bona fide can obtain the good. Indeed, Article 3:105(1) of the Civil Code states, “He who possesses a good at the time when the prescription of the legal action terminating the possession is completed shall acquire that good, even if his possession was not in good faith.”
Statute of limitations for bad faith possession
The limitation period applicable in that case is twenty years (art. 3:306 BW). It concerns a claim for termination of possession by a non-owner. The period starts to run on the day following the day on which the immediate removal of that situation can be claimed (Article 3:314 paragraph 2 BW).
Thus, in the example concerning my neighbor placing a hedge on my land, the term begins to run on the day after the hedge is placed. Thus, my neighbor who is not in good faith can acquire ownership of my piece of land after 20 years of being a possessor of it. This also means that I can no longer bring a revindicatory action (after all, only an owner can bring such an action).
Tort claim as remedy for land grabbing
In 2017, the Supreme Court issued a ruling on acquisitive prescription. In that case, the municipality of Heusden had lost its title after 20 years to persons who had not taken possession of a plot of forest land in good faith. A plot of over 400 m2 belonging to the municipality had been fenced off by the persons behind their own plot, with the strip of land only accessible through a small gate that the persons could lock. In this way, de facto power had thus been exercised by the persons over the piece of land.
In a superfluous consideration, the Supreme Court indicated that the municipality may still have a claim in tort. In doing so, it indicated that it would be obvious that compensation would be claimed in the form of transfer of the property to the person who lost ownership.
Case of loss of property by acquisitive prescription
The Supreme Court recently handed down a judgment on a dispute between neighbors, where it was already established that one neighbor (“A”) had lost a piece of land to his neighbor (“B”) as a result of acquisitive prescription. The case was abbreviated as follows.
When a vacation park was still under development (March 1991), B purchased a plot of land at that park. Attached to the deed of conveyance was a drawing showing a plot with a rectangular shape. A only later (in 2000) became the owner of an adjacent plot of land on the park. He bought the plot from someone who in turn bought it while the park was still being developed.
In early March 1991, the Land Registry measured the cadastral boundaries. Then the boundaries were made visible in the field with iron pipes driven into the ground with wooden pickets. Also in June 1992, the boundaries of the plot were measured. On a drawing accompanying the account of it, the plot looked like a rectangle.
The cadastral boundaries of the plot
B was still not comfortable with the size of his plot around August 1992. He then asked the sales agent to designate the boundaries of the plot. He then installed 50 conifers around September 1992 to demarcate the plot and a much larger number in May 1993. This property boundary was sloping (i.e. this did not line up with cadastral data).
In December 2012, A had a boundary reconstruction performed by a company and later (in 2014) again by the Land Registry. This revealed that the cadastral plot boundary did not correspond to the plot boundary that was actually present (the conifer hedge). B had actually added 46 m2 of land that (later) belonged to A to his plot.
In a judgment dated March 30, 2016, the Limburg District Court ruled that the strip of land in question became B’s property by acquisitive prescription.
Tort claim for taking possession of land in bad faith
A then commences proceedings in which he claims from B that, by way of compensation in kind, the strip of land that belonged to him should be delivered back to him in ownership. A hereby argues that B acted unlawfully by taking possession of the strip of land between September 1992 and May 1993 in bad faith and then keeping it for a period of 20 years (or the limitation period for acquisitive prescription under Article 3:306 of the Civil Code). The court granted the claim.
The dispute in the proceedings centers on whether the action was unlawful and, in particular, whether B knew that he had taken possession of a piece of A’s land.
What does the wrongful conduct consist of?
To answer this question, the Court considers various factual circumstances. From these, the Court draws the conclusion that, at least until June 2, 1992, B actively knew where the boundary between his plot and the neighboring plot ran. B knew that he had a rectangular plot, but nevertheless constructed an angled yard fence. In this way, and by subsequently maintaining possession of the plot of land for 20 years, B acted culpably unlawfully. The court’s judgment granting A’s claims is thus upheld.
Supreme Court sticks to doctrine on damages claim after acquisitive prescription
B appealed in cassation to the Supreme Court and argued that the Supreme Court should reverse the judgment concerning the Municipality of Heusden. In that judgment, as explained above, it was held that a person who has lost ownership of a property as a result of unlawful seizure by another person may still have a claim for damages against that other person based on tort. The Supreme Court sees no reason to return to that ruling.
It was further argued in cassation that the Court of Appeal did not find that B had acted in bad faith. However, the Supreme Court is of the opinion that the Court of Appeal meant that B knew that the strip of land belonged to the neighboring parcel and that that judgment implies that B was acting in bad faith. The cassation appeal is therefore dismissed.
Can tort claims also be time-barred?
The claim in tort may also be time-barred. In land grabbing situations, it should be seen as follows: not only the unlawful taking of possession, but also keeping possession for a period during the 20-year statute of limitations is unlawful conduct. After all, by keeping possession for 20 years, the consequence (loss of ownership by the aggrieved party) eventually occurs. Thus, the wrongful act ends only at the time of transfer of ownership.
Thus, it is certainly not the case that the compensation claim is time-barred at the same time as the revindication claim.
What is the statute of limitations for tort claims in land grabbing?
The limitation period for claims based on tort is regulated in Article 3:310 (1) of the Dutch Civil Code. In view of this section of the law and the judgments discussed, the following applies with respect to prescription:
- a five-year statute of limitations begins to run from the time the aggrieved person became aware of his property loss;
- but in any case, the claim lapses twenty years after the completion of the limitation period of Article 3:314(2) of the Civil Code.
Thus, when property is lost to a bad faith possessor, one has the opportunity to revindicate the property for 20 years, after which there is still the possibility of recovering the lost property with an action in tort for a period of at most 20 years.
What to do as a victim of land grabbing?
Thus, there is still an ample period of time for an aggrieved person to take legal action against land grabbing. Nevertheless, the sooner one takes action against an unjust taking of land the better.
Lawyer needed for loss of property due to land grab in Rotterdam
If you have questions about property law, including situations concerning taking possession of parcels of land (land grabbing) and limitation periods, or tort claims, please contact Peter de Graaf.
The Supreme Court ruling discussed can be found here.
