Quick overview:
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Tenure is the acquisition of ownership by long term honest possession.
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10 years + legal reason + good faith.
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Extraordinary possession: 20 years without legal reason, without knowledge that the right does not vest.
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The right arises by operation of law on expiration of time.
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A court decision is usually required for registration in the land register.
Not sure if you meet the conditions for retention of title? Let a solicitor assess the situation – we will check the evidence and prepare a proposal for a solution.
The right to possession of land
Land retention is a legal mechanism that allows the holder to acquire ownership of a thing (often just land), based on its fair and proper use. This legal institution has been known for hundreds of years.
The principle of retention of title is based on the idea that the right of ownership should reflect the actual use of the property. It thus addresses situations where formal legal titles and the reality on the ground diverge.
It is not only the right of ownership that can be retained, but also the right corresponding to an easement (e.g. a right of way over someone else’s land or a right to run utilities).
Practical example:
Mr. Miloš, who owned a house with a plot of land in South Bohemia, contacted the office of the Accessible Lawyer. The house was about two hundred meters away from the main road. However, about 40 metres of this ran across the neighbour’s land. This had not been a problem for many decades, as Mr Miloš’s parents had already shortened their journey in this way. But the neighbour died and his descendants had other plans for their land. They forbade Mr. Miloš to cross the land and tried to prevent him from doing so in every possible way.
Since the road had been used in this way for almost thirty years, everything indicated that there might be a possession, even an extraordinary possession, where it is not necessary to prove honest possession, but only the absence of dishonest intentions.
In the present case, the retention did not concern ownership of the land but the right of way to it. The retention of the easement must be decided by the court. Without it, the land registry cannot grant the retention. The court must assess whether there was a rightful possession of the right corresponding to the easement.
We therefore filed a motion on behalf of Mr. Milos asking the court to determine that there was a possession of the right of way in this case. This was proved with the help of witnesses and the procedure was successful.
Tip for article
Tip: The relationship between landowners can be settled in a different way than by selling or donating the land, by exchanging it. This is not a frequent option, but we do see it from time to time. For example, when heirs inherit different plots of land or parts of land that they would like to consolidate and organise more efficiently.
What is the condition for retention?
In the case of extraordinary retention, possession does not have to be based on a legal ground. In contrast, for ordinary possession, the condition is that the holder acquired the thing on the basis of a legal ground (for example, a contract), even if that legal ground is invalid, and that he or she had a good faith belief that the thing belongs to him or her.
On the other hand, possession, and thus acquisition of ownership, does not occur, for example, in the case of a stolen item. This is because the condition is that the person in question uses the land in good faith and (which is excluded in the case of a thief) publicly and continuously for the period specified by the Civil Code. In this situation, the ownership rights may be transferred from the original owner to the user. The length of the necessary period of use is also determined by the Civil Code.
But how can someone hold and use land that does not belong to him? It may be only a small part of the land, for example, in a situation where a fence is incorrectly erected, or the boundary marked in the land register differs from the natural boundary of the land, such as the edge of a forest, a river, etc.
For example, we have helped clients resolve disputes over a few square metres caused by incorrect fencing. The most common mistake is that people never have the boundary surveyed and rely only on the “historical condition”.
Exclusion raises many legal, ethical and social issues, especially in the context of protecting property rights and justice. On the one hand, it provides the possibility of legalising conditions that have been created by long-term use, on the other hand, it can be seen as a tool to circumvent traditional requirements for the transfer of ownership.
In practice, the process of possession is often complex and requires careful preparation of evidence and argumentation before the competent authorities or courts. It is worth leaving nothing to chance and consulting a lawyer.
In practice, we often deal with situations where the holder has been using the land for decades but lacks evidence. We can help you prepare witness statements, historical maps and documents for court proceedings.
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Ordinary and extraordinary possession of land
Ordinary and extraordinary possession are two basic types of possession of land, which differ primarily in the conditions that must be met for successful enforcement.
Ordinary enfranchisement refers to a situation where a person has used the land for the required period of ten years. However, other circumstances must also be proved, in particular that the possession is proper and based on a legal ground (this may include an invalid contract which the holder believes to be valid. The holder must honestly believe that the thing belongs to him. The possession was not due to a cunning break-in or intrusion.
In the case of extraordinary possession, the condition that the possession is based on a legal ground need not be fulfilled. The lapse of 20 years in the case of immovable property is sufficient. The only condition is the absence of dishonest intent to possess. The courts are quite strict in assessing whether the holder could not have actually known that the land did not belong to him. Each case is individual and the specific evidentiary situation is decisive.
Both forms require careful documentation and a burden of proof on the part of the person claiming possession. If you want to claim possession, a court decision is required.
Retention of municipal land
In the case of municipal land retention, we face a unique situation compared to private land. Thus, possession in this case may require stricter conditions compared to possession of privately owned land.
The basic conditions, i.e., proper and bona fide possession in good faith for a certain period of time, remain the same, but by definition the principle and manner of use of municipal land is different.
A number of persons enter, manage and use municipal land. The mere fact that I walk along a path in a park, clean it or maintain lighting in it is not an exercise of a power forming part of the right of ownership.
Land such as a city park is considered a public asset that cannot be sustained by ordinary use, even if it occurs continuously over a twenty-year period. The public domain does not allow, in view of the nature of the common use, the possession of the property. This is apparent from its very nature.
That does not mean, however, that the process of possession of municipal property is impossible. The applicant should contact the competent municipal authority and provide evidence to support his claim. This may include photographs, witness testimony, historical maps or other documents proving long-term use.
It is also important to show that the use of the land has not interfered with the rights of others and has been carried out in a public and open manner, allowing the municipality or the state to intervene if it deems it appropriate.
Disputes with the municipality tend to be legally more complex. If you are dealing with the retention of municipal property, we recommend that you consult the procedure individually – each case is different.
Tip for article
Tip: Different types of buildings can be registered in the Land Registry. Each proposal for entry has its own specifics. In our article, we will focus on the four types that raise the most questions – new buildings, land subdivisions, buildings under construction and wells. In addition, we also provide you with other important information about the registration in the Land Register as such.
Summary
Possession of land is a method of acquiring the right of ownership under the Civil Code (Act No. 89/2012 Coll.), which occurs when a person holds the land as his own for a long time, acts in good faith and fulfils the statutory period of possession – usually 10 years for ordinary possession (if the possession is based on a legal reason) or 20 years for extraordinary possession (without a legal reason, if the holder did not know or did not need to know that the thing does not belong to him). The retention takes place directly by operation of law on expiry of this period, not by court decision; however, a court decision is usually necessary for registration of the ownership right in the Land Register. Property held dishonestly (e.g. stolen property) cannot be retained and retention of property intended for general use is also problematic. The key is to prove continuous, public and honest possession and to be able to substantiate your claim with evidence, especially in the event of a dispute with the original owner.
