Legal Advice on Snippergroen


Questioner

Ir/Madam, Subject: project snippergroen 24 years ago we had a house built. On this building site there was a row of trees and shrubs on the side on municipal land. After consultation with the municipality, these trees and shrubs were allowed to be cleared so that the house could be built. We had to replant this strip of land ourselves according to our own insight with a few trees and shrubs and could provide for the maintenance ourselves. We did this. (Trees, shrubs and impenetrable hedge). We have always maintained this strip of land neatly, cleaned the ditch, etc. The municipality has not set foot on this strip of land in 24 years. Unfortunately, none of this is on paper. This was not the case 24 years ago. At the end of 2015, we received a letter from the municipality stating that we had the opportunity to purchase this strip of land as part of the Snippergroen project, or if we did not purchase, everything had to be removed at our own expense. After making inquiries, we have filed an objection twice stating that the above has expired and that we can continue to maintain this strip. It will of course remain the property of the municipality. Unfortunately, the above has been rejected twice. Now we have received another letter stating that everything must be removed from the garden before 1 October. Is it possible that you could reconsider the above. I have letters, photos etc. if you need them. Yours sincerely.

Lawyer

For liberative prescription, article 3:105 BW stipulates that the person who possesses an asset at the time when the prescription of the legal action aimed at terminating the possession is completed, acquires that asset, even if his possession was not in good faith. This form of prescription concerns the prescription of the legal action for terminating the possession. This refers to the claim that the municipality can institute to enforce its right to the immovable property, such as the claim for restitution or a declaration of law. At the time when the limitation period has expired, the possessor acquires ownership of the immovable property by operation of law, regardless of his good or bad faith, regardless of the duration of his possession and regardless of whether or not this possession has been continuous. The limitation period for instituting legal proceedings in this case is twenty years and begins on the day following the day on which a non-entitled person has become a possessor or the immediate termination of the situation of which his possession constitutes the continuation can be demanded. If you wish, you may contact me directly.

Lawyer

For prescription to occur, there must be possession. Because in this case the use of the strip of land took place on the basis of a (verbal) loan agreement with the municipality, there is no possession and therefore no prescription. Possession is understood to mean: keeping a good for oneself. That was not the case here, the strip of land was kept for the municipality. In other words, the municipality is within its rights; it can terminate the oral agreement concluded at the time and demand that anything that was installed under that agreement be removed. Only if the strip of land had been put into use without consultation with the municipality and had been maintained since then, could there be a question of prescription as indicated in Mr Groenewegen's answer.

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