The Bottom Line
- Document Everything: Landowners, including companies and municipalities, who permit others to use their land should explicitly document this permission. A clause in a related contract, like a deed of sale for an adjacent property, can be decisive in preventing a future adverse possession claim.
- Actions Speak Louder (Unless Words Contradict): An offer to purchase a piece of land is a powerful acknowledgment of the other party’s ownership. This can fatally undermine any later claim that you were possessing the land “as an owner.”
- Due Diligence is Key: For CEOs and legal teams involved in property acquisition, the long-term use of adjacent land by a seller does not automatically create ownership rights. The legal basis for that use—whether it was with permission or with the intent to possess—is a critical point for due diligence.
The Details
This case, brought before the Supreme Court of the Netherlands, involved a classic property dispute: a homeowner claimed ownership of an adjacent strip of municipal land that had been used as part of their garden for decades. The claimants argued that because they and their predecessors had exclusively used, maintained, and fenced off the land for over 20 years, they had acquired ownership through acquisitive prescription (a concept similar to adverse possession). However, the Advocate General’s opinion to the Supreme Court confirms the lower courts’ rulings against the homeowners, providing a crucial clarification on the difference between using land with permission versus possessing it as an owner.
The core of the legal reasoning hinged on the critical distinction between being a possessor (acting with the clear and unambiguous intent of an owner) and a holder (using the property with the owner’s explicit or implicit permission). The court found definitive evidence in a 1999 deed of sale when the municipality first sold the main residential plot to the claimants’ predecessors. That deed explicitly stated that the adjacent strip of land (an orchard) would “remain the property of the seller [the municipality].” This single clause was interpreted by the court as the basis for a user agreement, establishing the new owners as holders, not possessors, regardless of how they physically managed the land.
This finding was fatal to the adverse possession claim due to a key principle in Dutch property law: a holder cannot unilaterally decide to become a possessor. Once use begins on the basis of permission, it is presumed to continue on that basis. To change this, the user must openly and directly contradict the owner’s rights, or the owner must perform an act that transfers possession. Simply maintaining a garden and fence, which is consistent with use by permission, was not enough to signal a change in legal status. The claimants’ case was further weakened by the fact that both they and the previous owners had repeatedly asked the municipality to purchase the land, an act the court viewed as a clear acknowledgment of the municipality’s ownership.
SOURCE: Advocate General at the Supreme Court of the Netherlands
