Owner by prescription against will?

That you by prescription owner can become the owner of a piece of land is well known to many. Most often, property boundary disputes involve land that several parties want to own. Less common is that two parties do not want to be owners and appoint the other as the entitled party. However, if there is highly contaminated land, or, for example, land with buildings whose maintenance costs are very high, this can be understandable. For example, a number of homeowners in Friesland were faced with the high maintenance costs of the embankment that separates their plot from the municipality's plot. Real estate law attorney Robert van Ewijk Discusses the judgment of Arnhem-Leeuwarden Court of Appeal (ECLI:NL:GHARL:2025:844), which ruled on this issue early this year

Dispute over shoreline maintenance costs

The case was brought by a number of homeowners from Lemmer, Friesland. The owners each have a plot on which their home stands. That lot borders the public road owned by the Municipality of De Fryske Marren. Across the road lies water, which is divided into a number of plots where a boat can be moored. In addition to owning the lot on which their home is located, the homeowners also own one of those water lots. The municipality and the homeowners, dispute over whose shoring belongs. The reason is its necessary maintenance, which involves high costs. Those homeowners argued (among other things) that the municipality had become the owner by prescription. The municipality didn't see that. The question arose before the court of appeals as to whether you can also become the owner of a property by prescription.

The municipality has done acts of possession over the shoring

To support their claim that the municipality became the owner of the shoring by prescription, the homeowners claim that the municipality has acted as the owner for many years. For example, the municipality allegedly performed maintenance on the shoring and replaced the purlins associated with the shoring. In addition, the municipality allegedly marked the lines on drawings in such a way that the embankment was marked as the municipality's property on them. In addition, the municipality has authorized the installation of walkway scaffolding on the purlins of the shoreline. In addition, the municipality had sounding work done in preparation for work to replace the shoring. By doing so, the municipality also outwardly behaved as an owner, the homeowners said.

Acquisition and loss of land by prescription

The court had already indicated at first instance that there was insufficient evidence to support the claim that the municipality had actually performed maintenance. From the poor condition of the embankment, the court apparently already doubted that this was the case. No new evidence was presented on appeal. The court added, however, that even if such evidence had been provided, this still does not make the municipality the owner of the shoring by prescription. This is because the doctrine of prescription, is written in the interest of the party claiming ownership. The doctrine of prescription provides protection to the one who claims the property in his possession. However, the mirror image is not the case. The one who is formally the owner cannot force that ownership on another if that other person does not want to be the owner:

“The doctrine of prescription does not lend itself to imposing ownership of real property on third parties who do not wish to rely on that property and do not wish to acquire that property.”

Lawyer on prescription ownership of land

In short, you cannot become the owner of a thing by prescription. Only the person who has possession of that thing (and is not formally an owner) can invoke the doctrine of prescription. Not the one who is eager to lose ownership.