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The actual state of the succession boundary proves to be of importance again in succession boundary disputes in order to be able to achieve liberating or acquiring prescription. Article 3:310 Dutch Civil Code sometimes offers a way out for the final outcome of this.

In rulings that deal with neighbor law issues and in which Article 3:105 of the Dutch Civil Code is central, a common thread can clearly be seen that essentially the factual record determines whether there are sufficient leads to arrive at the judgment of rightful owner.

In the judgment of the Den Bosch Court of Appeal of March 30, 2021, the Court considers the question of what happened between two neighbors in the 1980s. The answer to the question of whether there was unequivocal possession is colored by the facts from which it should follow that the neighbor actually thought that the disputed land could be considered his property. In this case, the Court assumes that this was indeed the case because a fence had been erected.

Increasingly (since the Heusden v. Defendants judgment), Section 3:310 of the Civil Code offers some relief to ease the property law pain of acquisitive prescription. This judgment states that the limitation period of the aforementioned article only starts to run after the liberating or acquiring prescription has become final. Compensation can then consist of returning the land to its original owner.

The ruling does show that unlawfulness must then first be established for the bump in the limitation period to be tested. In the judgments so far, this first hurdle sometimes seems a bit too high.

Want to know more about inheritance boundary rights and neighbor law related issues? Please contact Deborah van Zanten by email or number: 0658987775.

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