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7 Oct 2024 Creation of an easement by acquisitive prescription

In neighbouring disputes, the question of whether an easement of right of way has arisen by acquisitive prescription and, in particular, whether the good faith of possession required for this can be presumed. Can ignorance of facts that would have been known by consulting the registers preclude good faith?

The facts

A case in which the Supreme Court had to rule last year involved the following. The parties were immediate neighbours of each other. Both houses were located on water, the Balkengat, which connects to the Spaarne. The parties' plots each included part of the Balkengat. From the plaintiff's plot, the Spaarne could only be reached by water via the part of the Balkengat that belonged to the defendants' plot.

Until 31 August 2001, the parties' plots were one parcel of land, numbered 003. By notarial deed dated 11 March 1999, a right of way easement had been established in favour of and at the expense of plot 003 on the one hand and plots 004 and 005 (comprising other parts of the Balkengat) on the other. The deed stated the following:
It is hereby established mutually for the benefit and at the expense of the [plot [003]] and for the benefit and at the expense of the [plots [004] and [005]] the easement of right of way to come from and go with a vessel across the water to and from the Zuider Buiten Spaarne.

By notarial deed dated 31 August 2001, plot 003 was split into plot 002 (owned by the plaintiffs at the time of the proceedings) and plot 001 (owned by the defendants at the time of the proceedings). By that deed, the original owners transferred plot 001 to the defendants' legal predecessor. The original owners then retained ownership of plot 002.

In terms of easements, the notarial deed of 31 August 2001 merely quoted from the notarial deed of 11 March 1999. No establishment of an easement between plots 002 and 001 was included between them.

The original owners subsequently sold and delivered plot 002 to the plaintiffs in 2015. Parcel 001 was delivered to the defendants on 1 December 2016. The relevant deed of delivery referred to the notarial deed dated 31 August 2001.

After some time, the defendants sealed off the part of the Balkengat belonging to their plot by installing three interconnected mooring posts. They held that their plot did not have an easement in favour of the plaintiffs' plot. The plaintiffs opposed the closure and commenced proceedings seeking an order that the defendants comply with the easement (unobstructed passage to and from the Spaarne via the Balkengat).

Judgement of the court and court of appeal

The court ordered the defendants to comply with the easement of right of way to come and go by boat across the water, in particular by shortening the construction they had constructed in the Balkengat. The court set aside the court's judgment and dismissed the plaintiffs' claim.

With regard to the plaintiffs' reliance on acquisition by continuous possession in good faith, the court briefly considered that the original owners are not deemed to have been in good faith within the meaning of Section 3:118(1) of the Civil Code. A somewhat thorough reading of the deed recorded in the public registers on 31 August 2001 reveals that it did not establish an easement between plots 002 and 001. Therefore, pursuant to Article 3:23 of the Civil Code, the original owners could not rely on ignorance of the fact that no easement had been established.

Supreme Court ruling

However, the Supreme Court thought otherwise.

In cassation, it was complained that the court of appeal would have misunderstood that Section 3:23 of the Civil Code only refers to cases in which the acquirer of an immovable property would have known better by consulting the registers with a view to acquiring the easement, whereas the situation at issue in this case was that the parties to the division of plot 003 assumed that an easement had been established by registration of the division deed by the notary. It was argued by the plaintiffs that it was the intention of the original owners and the defendants‘ legal predecessor at the time of the division of plot 003 into plots 002 and 001 to establish an easement in favour of plot 002 (where the original owners were going to live) and in charge of plot 001 (where the defendants’ legal predecessor was going to live), and that they discussed this at the notary. Therefore, the original owners could not conclude from the public records that no easement had been established, as it was precisely the intention of the parties to establish an easement by the deed of subdivision of 31 August 2001.

It follows from the law that an easement is registered property and can be acquired by prescription upon possession in good faith of the easement for an uninterrupted period of ten years (Article 3:99 paragraph 1 of the Civil Code). A possessor is bona fide if he considers himself to be entitled and could reasonably consider himself to be so (Art. 3:118 paragraph 1 of the Civil Code). If a possessor is in good faith, he is deemed to remain so (Art. 3:118 paragraph 2 DCC). Good faith is lacking not only if the possessor knew the facts or the right, to which his good faith must relate, but also if he should have known them in the given circumstances (Art. 3:11 DCC). Art. 3:23 BW reads:
An acquirer of registered property's reliance on good faith shall not be accepted if such reliance includes a reliance on ignorance of facts that would have been known by consulting the registers.

The Supreme Court ruled that Art. 3:23 of the Civil Code does not prevent the assumption of good faith in cases where, without the parties being aware of it, there is no registration of the notarial deed of establishment of an easement or the easement is not mentioned in the notarial deed that is registered. After all, Art. 3:23 of the Civil Code does not create an obligation to investigate one's own acquisition, but aims to protect the earlier right holder against the later possessor who could have known the facts or the right by consulting the registers.

As reflected in the court's final judgment, the plaintiffs argued that when plot 003 was divided and the original owners and the defendants‘ legal predecessor transferred part of it (plot 001) from the original owners to the defendants’ legal predecessor, the original owners intended to establish an easement for the benefit of plot 002 and at the expense of plot 001, and that they assumed that this was also provided for in the notarial deed of division and transfer. The court did not reject those contentions.

If in fact the intended easement was not established due to an omission on the part of the notary, the original owners did not notice this omission at the time and it did not appear that this could be imputed to them, the plaintiffs' reliance on good faith on the part of the original owners is not precluded by the fact that the original owners could have noticed the omission in the deed upon later consultation of the registers.

Conclusion

The complaint thus succeeded. Ignorance of facts that would have been known by consulting the registers did not preclude a plea of good faith in this case.

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