Land retention: when are you entitled to it?

Land retention is one of the forms of acquisition of ownership. However, it is necessary to consult an expert to assess or prove it in court. Its creation is not as obvious as in the case of a contract of sale. When does possession occur and how does ordinary and extraordinary possession differ? This is the subject of our text.

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Chapters of the article

Right to possession of land

Land retention is a legal mechanism that allows the holder to acquire ownership of a thing (often land) by virtue of 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: 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?

The specific feature of possession that leads to possession is that it is use without legal title. This means that there is no contract of sale or gift, for example.

On the other hand, possession, and therefore acquisition of ownership, does not occur, for example, in the case of a stolen item. 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 law. In this situation, the ownership rights may pass from the original owner to the user. The length of the required period of use is determined by law.

But how can someone hold and use land that does not belong to them? 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.

Eminent domain 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 created by long-term use, while 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.

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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.

Both forms require careful documentation and the burden of proof on the part of the person claiming possession. If you want to claim possession, a court decision is required.

Possession 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 their very nature 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. In practice, the process of applying for the possession of municipal land can be challenging and requires careful preparation and legal advice.

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.

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Author of the article

JUDr. Ondřej Preuss, Ph.D.

Ondřej is the attorney who came up with the idea of providing legal services online. He's been earning his living through legal services for more than 10 years. He especially likes to help clients who may have given up hope in solving their legal issues at work, for example with real estate transfers or copyright licenses.

Education
  • Law, Ph.D, Pf UK in Prague
  • Law, L’université Nancy-II, Nancy
  • Law, Master’s degree (Mgr.), Pf UK in Prague
  • International Territorial Studies (Bc.), FSV UK in Prague

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