Legal Advice on Land Disputes

Questioner

I received a letter from the municipality with an aerial photo and cadastral boundaries. The municipality claims that I use part of the municipal land as a front garden. I can buy this, if I do not do this I will have to reduce the boundary to the cadastral boundary. It concerns an area of ​​30 m2. I bought the house with garden 30 years ago, a number of shrubs and trees in my front garden were already there then, which now appears to be on municipal land. The front garden has always been screened by an old hedge, I replaced this a few years ago with a new boxwood hedge, but the border has remained unchanged. If the municipality is right, then a number of my trees are on municipal land, including the plum tree that I make jam from every year. What can I do and can I take action myself without a lawyer? For example, via the subdistrict court judge.

Lawyer

I advise you to reject the municipality's claim in a proper registered letter. Now that you have had the disputed land in your possession for more than 10 years, you have become the owner of it on the basis of Article 3:99 of the Dutch Civil Code (acquisitive prescription). You are acting in good faith if you could reasonably consider yourself to be the rightful owner (Article 3:118 BW). The limitation period begins to run at the start of the day following the day on which possession was obtained, Article 3:101 BW. I wish you a good harvest in 2015.

Questioner

Many thanks for your response M. Korving. Yes, in this case there is literally a question of usufruct. In the meantime I have read more about it and have once again leafed through the folder with papers concerning the real estate. About 10 years ago I bought a piece of land behind my house, which turned out to belong to the province. The land registry then sent me a map, scale 1 to 500. I have never bothered with the border at the front, that all seemed clear, but if I measure it now the municipality could well be right. Although such a small map is not very accurate, a deviation of 1 mm is immediately half a meter in reality. Is it wise in my situation to appeal to “acquisitive prescription” as opposed to “liberative prescription”? The municipality could argue that I could have been aware of the correct limit. I have also understood that I can have a notary record that I am the owner of the land in question, do I need permission from the municipality for this or just sufficient proof? Is this wise? To be on the safe side, I have already sent a short letter to the municipality in which I indicate that the claimed land has been in my possession for 30 years and I ask them to explain why they believe that the land is theirs. I wonder if the municipality can still throw a spanner in the works by quickly starting an APV procedure for eviction before I can invoke prescription. Is haste required or should I proceed with caution?

Lawyer

In prescription cases, it's all about the facts. Also in your case. Whether you would be better off going with acquisitive prescription (Article 3:99 BW, but 10 years required + good faith) or liberative prescription (Article 3:105 BW, 20 years required) I cannot tell right now. Judges often calculate back from now to the past: if you have owned the land for more than 20 years, prescription is 'simply' in effect and it no longer matters so much which form of prescription is in question. And in addition to private law cases (prescription), administrative law cases can indeed also be involved. I can only judge what is best in your case when I look at the facts. And that can be done very quickly. Often you don't have to rush into things: the chance that the municipality will bulldoze your land tomorrow is very small. You can come to my office hours and we will go through the facts thoroughly. Of course you can also consult another lawyer or specialist in prescription cases.

Questioner

Thanks Mrs. van Leijen. I had already seen your video on Youtube, very instructive. I will first send a registered letter to the municipality in which I appeal to prescription. Fortunately, I was also able to find some old photos so that I can show that the property boundary has been the same for 30 years. I suspect that the municipality will not make things difficult, but if this is the case, I will contact you.