Property by prescription, theft no longer pays off

When our current Civil Code was introduced, provision was made for a person who takes possession of another's land to become the owner of that land over time. Simply put, if enough time passes, theft eventually pays off. That's a pretty big deal. However, the Supreme Court recently put a cap on that.

The right

First, a brief explanation of the system of our law. Suppose someone takes possession of a piece of your land. For example, by adding this piece to his garden and putting a fence around it. You can then turn to the court and demand that the unlawful possession of your property be terminated. Of course, this seems and is only logical. You should still be able to rectify a violation of your property rights.

However, there is a catch. If you wait too long before going to court, your claim may be time-barred. Your claim will then be dismissed. The statute of limitations for a claim for termination of possession by a non-owner is 20 years. The statute of limitations commences on the day that the other person took possession of your land. Very concretely, as soon as your land has been taken into possession by another person, the 20-year period begins to run.

After the statute of limitations expires, you not only lose your claim, but also your land. This is because the law states that the party in possession of the land at the time your claim is time-barred also acquires ownership of that land. In other words, the party who took possession of your land is then also the legal owner.

Unfair or yet reasonable?

If something like this happens to you, you won't believe your ears at first. Someone is "stealing" your land and getting away with it. However, the legislator has opted for the following principle: when a situation that deviates from the law has existed long enough, the legal situation must be brought into conformity with the actual situation. Thus, with this principle of the legislator in mind, you should not allow an infringement of your property to continue for too long. The problem, however, is that an infringement is often completely unknown to the right holder. Such was the case that came before the Supreme Court.

Supreme Court

In this case, someone had fenced off a piece of forest land (adjacent to his garden and belonging to the municipality) and built on it with two forest cabins, a bocce court and a wood store. Through a gate in his garden, he was now the only one who could access this forest plot.

More than 20 years after the forest plot was taken into possession, the municipality took action. The reason the municipality responded so late was that the plot in question was remote. The municipality simply had not seen it before.

However, that does not save the municipality. The commencement of the statute of limitations does not require that the municipality knew that the forest plot had been taken into possession, the Supreme Court said. So this goes all wrong for the municipality. So gone is ownership of the forest plot, or is it?

For your information

When the Supreme Court begins a paragraph with "for the record," all legal experts prick up their ears. Nine times out of ten, an important decision then follows. Such is the case now. As an aside, the Supreme Court explains that the municipality has a claim in tort against the (new) owner of the forest parcel. After all, someone who takes possession of a piece of forest parcel, knowing that another is its owner, is acting unlawfully.

So the municipality can claim damages. Now the law provides that instead of money, compensation can also be in another form. This includes an order, by way of compensation, to transfer ownership of the piece of forest land back to the municipality.

What you call a rabbit out of the top hat. The municipality may have lost ownership of the forest plot by prescription, but it can still reclaim that ownership.

But what about the statute of limitations?

But the claim to end the wrongful possession was time-barred, right? True, but what the Supreme Court is talking about is the claim for damages. So this is a different type of claim. This claim is subject to a 5-year statute of limitations and it only begins to run when the municipality becomes aware of its loss of ownership.

 In conclusion

The Supreme Court's decision meets the sense of justice of every owner who seems to be losing their property due to prescription. Simply put, theft now pays a lot less, and every owner will agree.