Assessing Good Faith in the Acquisitive Prescription of a Neighbouring Plot

In practice, cases arise in which an acquirer takes a plot of land from the previous owner and takes possession of it to the same extent as that owner did, only for it to emerge later that the true boundaries of the plot run differently from the way the land is actually used. This frequently happens where the boundaries are not clearly delimited, for instance by fencing, or where the fencing is in the wrong place, so that the factual position conflicts with the position recorded in the Land Register. The question then arises whether the acquirer satisfies the conditions for acquiring the land by prescription. One of the basic conditions is the possessor's good faith, without which prescription is not available.

The Nejvyšší soud (Supreme Court) has addressed the assessment of the good faith condition. The case concerned a claimant who had acquired a plot (which was not fenced in any way) from the previous owner and who was at the same time using part of a neighbour's plot. Throughout, the claimant was in good faith that the land as he used it belonged to him, because the previous owners had used it in the same way and the neighbour had raised no objection. In its judgment file no. 22 Cdo 3079/2014 of 28 January 2015 the Nejvyšší soud (Supreme Court) held that:

“For the conditions of rightful possession to be met, it is not strictly necessary for the person who has taken possession of the land to acquaint himself with the content of the cadastral map, to re-measure its area or to require its boundary to be marked out.”

In its judgment of 23 May 2011, file no. 22 Cdo 2724/2009, the Nejvyšší soud (Supreme Court) held that “When considering the good faith of a possessor who has taken possession of part of a plot adjoining land he owns, regard must also be had to the attitude of the owner of the part so possessed; where that owner tolerated the possessor's use of part of his land for years, it must be taken that he too did not assume that part of his land formed the subject of his neighbour's possession.”

The Nejvyšší soud (Supreme Court) stresses that, when considering whether a person who, together with a purchased plot, took possession of part of a neighbouring parcel was, having regard to all the circumstances, in good faith that he owned that part of the parcel as well (that is, the land delimited by the boundary of possession), regard must also be had to the fact that his predecessor in title used the land to the same extent and handed it over to the purchaser in that form as the subject matter of the purchase contract. Under the judgment of the Nejvyšší soud (Supreme Court) of 3 July 2006, file no. 22 Cdo 2065/2005:

“Where a person acquires ownership of a plot of land and, as a result of an excusable mistake (induced, for example, by the transferor handing over the land within the boundaries in which he himself used it), also takes possession of part of a neighbouring plot, he will be a rightful possessor.”

The Nejvyšší soud (Supreme Court) has also dealt with a case in which a purchaser took possession of land of a larger area than that stated in the purchase contract: “The mere fact that the purchaser took to using land with an area of 358 m2 while the purchase contract stated an area of 266 m2 need not in itself mean that the purchaser was not, having regard to all the circumstances, in good faith that he owned the whole of the land possessed (absent special circumstances from which it clearly follows that, exercising ordinary care, he could and should have noticed the excess).”1)

In assessing whether the possessor's mistake is excusable, regard must also be had to the size and shape of the land. The Nejvyšší soud (Supreme Court) set out these criteria in detail in its judgment file no. 22 Cdo 3079/2014 of 28 January 2015:

“One of the criteria for assessing the excusability of the possessor's mistake in such a case is the ratio between the area purchased and the area actually possessed. The shape of the plots and their position in the terrain also matter when assessing the rightfulness of possession. The area of a regularly shaped plot can as a rule be estimated better than that of an irregular one; the same applies to a plot on level ground as against broken terrain. Also significant are shared fencing, the extent of use by the predecessor in title and the like. Where even the owner of the neighbouring (possessed) plot did not realise that the acquirer (or his predecessors) was in possession of part of his land, that will point to the mistake being objectively excusable. Depending on the circumstances of the case, the case law of the Nejvyšší soud (Supreme Court) tolerates an excess of up to 50 % of the area of the plot acquired, and exceptionally more … Nor does the mere fact that the possessor did not have the boundaries of the land he possessed marked out, and thus did not discover that he was also in possession of land he did not own, preclude his rightful possession (judgment of the Nejvyšší soud (Supreme Court) of the Czech Republic of 22 May 2002, file no. 22 Cdo 2211/2000, published in the Collection under serial no. C 1181).”

According to the Nejvyšší soud (Supreme Court), however, the possessor's good faith must be assessed objectively and not merely from the possessor's own subjective standpoint:

“… a precondition of acquiring a right by prescription is that the possessor is, having regard to all the circumstances, in good faith that the thing or right belongs to him. The assessment of whether the possessor is, having regard to all the circumstances, in good faith that the thing belongs to him cannot rest solely on the possessor's subjective ideas. The possessor's good faith must also be assessed by reference to whether, exercising the due care that may be required of every legal subject in the light of the circumstances of the particular case, he had or could have had doubts that he was also using land he had not acquired ownership of. Where an acquirer of immovable property takes possession, on the basis of a legal fact capable of transferring ownership, of a parcel to which that legal fact does not extend, he may, having regard to all the circumstances, be in good faith that he owns that parcel too. One of the criteria for assessing the excusability of the possessor's mistake in such a case is the ratio between the area acquired and the area actually possessed. Rightful possession need not necessarily rest on an existing legal title; a putative title (titulus putativus) suffices, that is, it is enough that the possessor is, having regard to all the circumstances, in good faith that such a title supports him. Good faith is therefore assessed by objective social criteria and not according to the possessor's subjective conviction. A possessor is accordingly in good faith ‘having regard to all the circumstances’ where, even exercising the ordinary care that may be required of anyone, he could have had no doubts as to the existence of the right possessed.”

In its case law the Nejvyšší soud (Supreme Court) accepts that a possessor may also be in good faith where he possesses land inconsistently with the position recorded in the Land Register:

“As early as its judgment of 17 November 1999, file no. 22 Cdo 837/98, published in the Collection of Court Decisions and Opinions under no. 40/2000, the Nejvyšší soud (Supreme Court) of the Czech Republic held that rightful possession of land conflicting with the entries in the Land Register (contra tabulas), or in the former land book or property records, is possible. It further follows from the settled case law of the court of cassation that where the actual legal relationships to the land conflict with the state of the public books, the actual state takes precedence over the state recorded in the public books …”2)

It follows from the settled case law cited above that the conditions for acquisitive prescription may be met even where the land is possessed inconsistently with the position recorded in the Land Register. In assessing good faith, and thus whether the conditions of honest possession are satisfied, regard must be had to all the facts from which it could be inferred that the possessor was in good faith. Among the matters of importance are the extent to which the previous owner used the land and, not least, the neighbouring owner's long-standing tolerance of that state of affairs. In any court proceedings, these conditions may be proved by the testimony of neighbours or by photographs showing that the position was tolerated over a long period.

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1) Judgment of the Nejvyšší soud (Supreme Court) of 6 October 2004, file no. 22 Cdo 488/2004.
2) Order of the Nejvyšší soud (Supreme Court) of 24 January 2012, file no. 22 Cdo 1150/2010.