Land grabbing as a tort; balancing legal certainty with justice in individual cases

Each year in the week after Easter the most significant developments of the past year in the field of tort law in Europe are discussed at the Annual Conference on European Tort Law in Vienna. This conference welcomes practitioners and academics not only from Europe, but from all over the world. Experts from across Europe present the highlights of their contributions to the Yearbooks European Tort Law, which are published yearly. At the 17th Annual Conference on European Tort Law that took place at the Austrian Ministry of Justice and the Austrian Academy of Science in Vienna on 5-7 April 2018, I represented the Netherlands and spoke about a case in which the Dutch Supreme Court balanced legal certainty with justice by prolonging the prescription period of a right of action in case of land grabbing. When legal certainty and justice are struggling for supremacy, as is the case in prescription law, the question is whether the one predominates over the other.

This years’ story from the Netherlands at the Annual Conference on European Tort Law is about a struggle as old as the law itself. It concerns the struggle between legal certainty and equity. In the old days this was discussed in terms of ius strictum and ius aequum. Currently it’s most commonly labeled as legal certainty versus justice in individual cases (P.H. Neuhaus).

These labels refer to two different aspects of the law. One is the public interest in clear, foreseeable and equal rules of law. They are supposed to enable those who are subject to these rules of law to adjust their behavior in such a manner as to avoid legal conflict
or to make lucid predictions of their chances in litigation. The other is the need for deciding current, concrete disputes adequately. In this aspect of the law it comes down to giving due weight to the special and possibly unique circumstances of each case.

Sometimes the struggle between certainty and justice gets rough. When somebody loses an alleged right through no fault of their own, for example, justice seems cornered. A solution to give impetus to justice and to restore the balance is then vehemently searched. Dutch case law of 2017 presents a quite sensational illustration. Critics entitle the case as judicial fireworks. I will sketch the facts and outcome of the case and subsequently will come back to and reflect upon the struggle between legal certainty and justice, by that time exemplified by the outcome of the case.

The case is about land grabbing (Dutch Supreme Court 24 February 2017, RvdW 2017, 298). In 1973, a Dutch Family bought a house and a parcel of land in the countryside of Drunen. This parcel bordered a parcel of woodland, which was owned by the municipality of Heusden. A couple of years later this Dutch family fenced off and gated part of this forest, located directly behind their parcel of land. So they grabbed land, knowing of course that this land did not belong to them but was communal property. We are talking about four hundred square meters. They made sure that they were the only ones using this part of the forest and kept it in good repair. Within the fence they made an access point that only they could open. They built two tree houses, a jeu de boule playing area and a storage for wood.

In 2003 the municipality, who was the owner of the forest, notified the family that it wanted to terminate the agreement that allowed the family to use the forest. The family responded to this message by claiming that there was no agreement between them and the municipality and that through acquisitive prescription they had become the owners of the forest that they had fenced. After all, they had taken this land into possession and the twenty-year prescription period of the right of action of the owner to terminate this possession had expired, while they had kept it in possession. And so, they claimed, the municipality had lost its ability to reclaim the fenced forest and its ownership thereof.

They took the matter to court. As a counterclaim the municipality lodged eviction of the forest and a prohibition for the family to use it. The court of first instance allowed the claim of the municipality. Contrariwise, the court of appeal allowed the claim of the family. The court of appeal argued that by the time the municipality reclaimed the forest, the family already had possessed it for more than twenty years and therefore, although they acted in bad faith, had become the owner of the land according to the Dutch provision on acquisitive prescription. Article 3:105 of the Dutch Civil Code states that the person who holds the property in possession at the moment on which the prescription period of the right of action of the owner to terminate this possession expires, acquires the property even if his possession was not in good faith. This article’s rationale is that at some point the legal situation must be in line with the factual situation. This improves legal certainty.

The Dutch Supreme Court concurred with the judgement of the court of appeal. But then more importantly it added in an obiter dictum that although the family had become the owners of the forest, it remains an option for the municipality to start an action against the family based on the general tort clause. Taking something into possession while knowing that someone else actually owns it establishes a tort. Vis a vis the bad faith of the family the behaviour of the municipality does not constitute contributory negligence. According to the Dutch Supreme Court it is unreasonable to expect from owners of immovable property that they regularly check, even without a concrete cause, whether their property is taken into possession by another person.

So it turns out that after losing ownership of property a new claim emerges, a tort claim. And a new prescription period commences, lasting at least five years and maximum twenty years (as follows from article 3:310 sub 1 of the Dutch Civil Code). To be more concrete, the Dutch Supreme Court mentions that in this case the subjective five-year prescription period of the tort claim (based on article 6:162 of the Dutch Civil Code) commences the moment the original owner is aware of the loss of his ownership, and that the claim prescribes in any case twenty years after the possessor acquired the ownership through acquisitive prescription.  Since Dutch law acknowledges compensation in kind (in article 6:103 of the Dutch Civil Code), the municipality can claim, as a form of damages, the transfer of ownership of the parcel of land from the family back to the municipality. This means that the ownership is lost but can be returned, if and when the court decides to award compensation in a form other than payment of a sum of money. Thus the municipality gets a second chance. The prescription of the right of action to terminate possession may have expired, but the same does not go for the prescription of the right to action to claim damages for losing ownership.

This direction of the Supreme Court was quite unexpected. The literature and former case law saw no possibility for such an equitable solution. They learned that a claim for damages prescribed no later than the reclaim of ownership itself, being the principal obligation (see amongst many others J.E. Jansen). It is remarkable that the Dutch Supreme Court came up with this new insight in an obitur dictum. The parties came to court with the question whether or not the grabbing of the land qualified as unambiguous and outwardly apparent possession required for acquisitive prescription. The Supreme Court answered this question affirmatively, and could have stopped there, but didn’t.

It should be mentioned that there have been other opportunities to do this, but for one reason or another the Dutch Supreme Court has not given this ruling before; it has, however, chosen to do so now. It is of course a decision based on legal policy. One could say it is more about politics than law. For sure, it caused many to reach for their pens. The ruling has been applauded but also severely criticized.

This case illustrate once again that we should not strive to end the conflict between legal certainty and justice in individual cases. That wouldn’t be feasible. Neither goal can replace the other. On the one hand it cannot be maintained that the sole purpose of justice is to guarantee the certainty of the law. On the other hand there is no merit to the assertion that real legal certainty is the certainty that justice will prevail. No, quite the contrary, both aspects of the law deserve acknowledgment. It comes down to a balancing act. This balancing act endeavours to strengthen the trust and credibility of the legal system and its fairness. All up for a fair battle!