Services / Civil and commercial litigation
Adverse possession, servitudes and access
These three tend to arrive together in a dispute over a single plot, and they usually begin with something small: a fence set slightly off line, or a path used so long that nobody remembers when it started.
Adverse possession
Section 1382 of the Civil and Commercial Code provides that a person who possesses another's property peacefully and openly with the intention of ownership acquires title after ten years of continuous possession for immovable property, or five for movables. Every element must be present: possession of property belonging to another, peaceful, open, with the intention of ownership, and continuous for the full period.
The presumption that assists a possessor
Section 1370 presumes that a possessor possesses in good faith, peacefully and openly. The presumption shifts the burden onto whoever disputes it. An owner who has let someone else use their land for years without doing anything is therefore in a harder position once the matter reaches court.
Servitudes
Section 1387 provides that immovable property may be subject to a servitude requiring its owner to suffer certain acts affecting the property, or to refrain from exercising certain rights of ownership, for the benefit of other immovable property. A servitude therefore attaches to the land rather than to a person, and a change of owner does not by itself extinguish it.
A way of necessity
The first paragraph of section 1349 provides that where a plot is so surrounded by others that it has no access to a public way, its owner may pass over the surrounding land to reach one. The second extends this where access exists but requires crossing a pond, marsh or sea, or where the levels differ steeply. The statute qualifies the right: the place and manner of the way must suit the necessity and cause the surrounding land the least possible damage, and the person passing must compensate its owner.
The documents that decide these cases
Disputes of this kind are decided on maps and on time. The cadastral sheet and plot plan from the land office establish where the boundary actually runs, while historical aerial and old photographs establish how the land was used in each period, which local recollection alone cannot supply.
PREPARE
What to bring
- Title documents for every plot involved
- The cadastral sheet and plot plan from the land office
- Historical aerial images and old photographs of the area
- Evidence of when use began, such as utility bills
- Names and contact details of those who know how the land has been used
QUESTIONS
Questions this raises
I have used a path across a neighbour's land for over ten years.
The first thing is to separate a servitude from a way of necessity, because they rest on different bases and are proved differently. A way of necessity under section 1349 turns on the fact that the land is enclosed without access; a servitude turns on use meeting the conditions the law sets. Long use alone is therefore not the answer by itself.
I have just learnt my fence has encroached for twelve years.
The ten years in section 1382 is only one element; possession must also have been peaceful, open, and with the intention of ownership. The intention is often decisive, because believing the strip to be yours and knowing it belongs to another while holding on to it produce different legal results. The whole of the facts has to be looked at.
LAW
The legislation
- Civil and Commercial Code, sections 1349, 1370, 1382 and 1387
ENQUIRIES
