Through prescription someone can become the owner of land they have possessed for years, even without ever having bought it. In practice this arises with strips of public greenery or rear plots absorbed into a garden.
Legal basis
Article 3:99 of the Dutch Civil Code provides for acquisitive prescription: a possessor in good faith acquires immovable property after ten years of uninterrupted possession. Article 3:105 provides for extinctive prescription: a person in possession at the moment the claim to end that possession becomes time-barred becomes the owner, even without good faith. That claim is time-barred after twenty years under Article 3:306. Possession requires more than use: there must be an exercise of control that is outwardly recognisable as a claim to ownership, for instance a fence, a hedge or a constructed driveway. On 24 February 2017 the Supreme Court held that an original owner who loses ownership through extinctive prescription can sue the acquirer in tort, with restitution of the plot as damages in kind; that claim is time-barred five years after the owner became aware of the loss.
How it works in practice
Municipalities now act firmly against what is called land grabbing and have relied successfully on that damages claim since 2017. For the occupier it therefore matters when the municipality became aware of the situation. Anyone buying a house with a garden that looks larger than the registered plot should have that investigated in advance, because the liability comes with it.
Where it goes wrong
Buyers rely on the land registry map, or conversely on the visible boundary, without a boundary reconstruction. A second error is assuming twenty years of use suffices; it must be possession, not merely use with permission. Third, the original owner’s damages claim is overlooked.
Related terms
Prescription connects to neighbour law, the easement and the general limitation period.
Is there a boundary dispute? Our real estate law specialists assess possession, periods and risk.
