Services / Civil and commercial litigation
Land taken or interfered with: one year
Land disputes usually begin quietly, with someone moving onto the land and the owner deciding it can be dealt with later. The law allows one year, and once it passes the case changes from a straightforward one into a hard one.
Disturbance and dispossession are different
The Civil and Commercial Code separates two situations. Section 1374 applies where a possessor is disturbed in possession by someone unlawfully interfering; section 1375 applies where possession has actually been taken away. Working out which one the facts fit is the first task, because what is asked of the court and how it is proved differ.
The right where there is disturbance
The first paragraph of section 1374 gives the possessor the right to have the disturbance removed, and where there is reason to fear it will continue, to ask the court for an injunction. The second requires the action to be brought within one year of the disturbance. A forward-looking order is therefore something the statute provides for, rather than something that must wait for a repetition.
The right where possession is taken
The first paragraph of section 1375 provides that a possessor unlawfully dispossessed is entitled to recover possession, unless the other party has a better right to the property such as would entitle them to take it from the possessor. The second requires the action to be brought within one year of the dispossession.
The provision that preserves possession
Section 1384 provides that where a possessor involuntarily loses the holding of property and recovers it within a year, or recovers it by suing within that year, possession is not treated as interrupted. That matters to anyone counting time toward adverse possession, because suing within the year preserves the continuity.
That year is shorter than it feels
In practice the year goes on negotiation, on waiting for the family's elders to talk, or on a survey, with nobody counting days. What should be done on the first day is to record precisely when it began and to photograph the state of the land, because when the matter reaches court the date the disturbance or dispossession started becomes an issue fought over in itself.
PREPARE
What to bring
- The title document, with its registration record
- A record of the date the disturbance or dispossession began
- Photographs of the land before and after
- Any survey result or cadastral sheet from the land office
- Evidence of your own use: utility bills, land tax receipts
QUESTIONS
Questions this raises
A neighbour encroached two years ago and I now want to deal with it.
Sections 1374 and 1375 set one year for removing a disturbance and for recovering possession, but both speak of possession, which is a different thing from suing as the owner of title. Which right is being asserted is therefore the first question, and it turns on what kind of document of title the land carries.
I was dispossessed but was counting time toward adverse possession.
Section 1384 provides that where a possessor involuntarily loses the holding and recovers it within a year, or recovers it by suing within that year, possession is not treated as interrupted. Suing inside the year therefore does two things at once here: it recovers the land and it preserves the continuity of possession.
LAW
The legislation
- Civil and Commercial Code, sections 1374, 1375 and 1384
ENQUIRIES
