Court of Appeals ends neighbor dispute: property line moved with shoreline

Court of Appeals ends neighbor dispute: property line moved with shoreline due to accretion

The owners of two villas on the Bergse Voorplas in Rotterdam have been arguing for nearly 10 years over ownership of a tip of a headland. The neighbor accessed that tip in 2016 and erected a fence on it. Exactly where the cadastral property boundary has been for years. The owner of the headland disagreed. At the time, he filed a summary proceedings started, but lost that.

Lawsuits over property line lost, but persistence wins

Up to and including the Supreme Court he fell flat. The judges who struck here may have considered that of acquisition of property by prescription was out of the question. Yet he was recently successful after all. After another lost case on the merits, in appeal ruled that he owned the entire headland, that is, including the dot that lay across the cadastral boundary. Real estate law attorney Robert van Ewijk Discusses the recent ruling of the Hague Court of Appeal.

Property boundary moved with shoreline

That many years of litigation still ended in profit was because the landowner made it into the proceedings on the merits changed tack. It no longer invoked prescription, but a somewhat more exotic article of neighbor law. In article 5:29 BW This is because it states that the property boundary of a plot bordering the water moves with the bank line. Therefore, under the law, if there is accretion or abandonment, it also affects where the property boundary runs. This rule is not often applied, let alone successfully. However, the Rotterdam plot owner did have that success, although it was not without controversy. Indeed, quite apart from the various earlier proceedings he had conducted, in this case the old Civil Code, as it applied before 1992, also had to be invoked.

Lawsuit over ownership of plot

In this case, the appellant owned the green parcel in the image below. That includes the depicted headland, which extended behind the yellow parcel in the illustration. That yellow parcel consists in part of water. However, a small portion of the headland belonged cadastrically to the yellow parcel.

That part of the headland runs cadastrically on the neighbor's plot (the yellow plot) is shown in the following drawing:

Neighbor dispute over property boundary and ownership of land

The appellant in this case became the owner of the green lot in 1992. In 1997, he had new shoring installed around the headland. The owner of the yellow plot purchased his plot in 2010. In 2016, he entered the headland, removed plantings and installed a wooden fence. This escalated the dispute over the property boundary.

Maps show: shoreline moved

In the proceedings, the appellant demonstrates with various maps and drawings that the cadastral property line and the shoreline were still parallel in the year 1886. He also shows that the shoreline moved outward over the years that followed. This development continued until 1943. After that, the shoreline just retreated a bit. In 1997, the shoreline was fixed by installing a shoring system. According to the appellant, the property line moved with the shoreline, and thus he owns the entire headland.

Application of the old Civil Code

Because the relocation of the bank line took place partly in the years before 1992 (when the new Civil Code was introduced and the current Article 5:29 BW became applicable), this case also looked at what was applicable under the old law. The precursors of article 5:29 BW are the articles 651 BW (old), 652 BW (old) and 653 BW (old) that applied between October 1, 1838 and December 31, 1991. Those articles provided:

“Article 651

1. The attachments and accretions, which grow naturally, gradually and unnoticed on the land near running water, are called washes.

2. Runoff shall be for the benefit of the owners of the shore, whether or not the title of ownership mentions the size of the land; (...).

Article 652

1. The provision made in the second paragraph of the preceding article also applies to washes ashore which take place on the shores of navigable lakes.

2. (...)

Article 653

1. Washout does not take place with respect to ponds.

2. (...)”

Court of appeals: property boundary moved with shoreline

Applying current and old law, the Court of Appeals concluded that the appellant was right. The levee has moved over the course of more than 100 years. As a result, the headland has partially encroached on the other parcel. In vain, the neighbor raises various defenses against this. For example, the Bergse Voorplas is said to be a pond as referred to in Article 653 of the Civil Code (old) and not a lake. Also, there would be no current in the lake so that of “washes up” cannot be an issue. According to the Court, however, that is too narrow a reading of the law. Indeed, there is no evidence that the legislator intended that the article in question does not apply to water in which there is no current. Deposits and other forms of accretion therefore also fall under the term ‘washes ashore.

No interest in inaccessible strip of land

Although the Court of Appeals' ruling is very down-to-earth, the mostly factually and legally worded judgment still contains a disguised expression of surprise. The Court of Appeal notes that the neighbor “has not explained what [he] believes [he] could have done with that stand-alone strip of approximately 66 m2 accessible only across [the appellant's] lot or the water.”. So it was unclear to the Court of Appeals what purpose the neighbor was pursuing with his annexation in 2016. With that, then, it was also unclear why he had litigated for years for the ownership of the strip of land. In fact, the neighbor cannot and could not actually do anything with it.

Real estate law attorney for disputes over property boundaries

The interesting thing about this issue is not only what the neighbor's motive was, but also that being creative with the law and choosing the right angle can make all the difference in a lawsuit. A good real estate law attorney in these types of disputes, looks not only at what is possible under current law, but also at whether old law can be applied. And if a ‘straightforward’ claim based on prescription does not succeed, there may be other ‘entrances’ in the law or case law to achieve the intended goal after all. Want to know what Lexys' real estate lawyer can do for you? Then take contact with us.