Prescription requires possession, but that is more than just use

Prescription can cause a person to become the owner of a piece of land that did not originally belong to him. On another page, we explain when statute of limitations begins to run and how long the term is. But there is a condition that is often underestimated: there must be possession. And possession is something substantially different from use.

What exactly is possession by prescription?

Possession means that someone has actual control over a piece of land and behaves as if he were the owner. This behavior must also be visible to the outside world. We call this the requirement of recognizability. Someone who uses a strip of land because he has received permission to do so is not a possessor - that person thereby acknowledges that the land belongs to someone else. Without possession there is no prescription. For years, case law has set high standards for what can count as possession of immovable property, and rightly so: the loss of ownership by prescription is a far-reaching consequence.

Previously impenetrable fence defined ‘possession’

For a long time, the basic principle was that the land taken into possession was enclosed with an impenetrable fence, such as a fence or a dense hedge. This fence made it visible that someone was separating a piece of land for himself and claiming exclusive control over it. To a rights holder, such as a municipality, it was thus apparent that its property rights were being infringed and that it had to act to statute of limitations to be interrupted. That line is still reflected in recent rulings.

New line in jurisprudence? Optical unit defines possession

Recently, rulings have appeared that take a different angle. Instead of focusing on a physical fence, judges therein look at whether the land taken into possession is visually or functionally one with the possessor's plot. The Limburg court ruled on April 9, 2026, in a summary proceedings (ECLI:NL:RBLIM:2026:3290) that such an optical unit may constitute a relevant indication of possession even without an enclosed fence. That enclosed fence was present at first and triggered the statute of limitations. The court:

“In the opinion of the preliminary relief judge, it is plausible that [defendants] exercised possession over the strip. The images from 1989 and 2002 show that the low fence ensured that the garden was shielded from the public sidewalk in such a way that it was visible to third parties - including the municipality - that [defendants] were claiming ownership of the strip. In both images, the strip optically forms a single entity with the rest of the front yard.”

However, even after that enclosed fence was removed, there was still possession, according to the court:

“Even after [defendants] removed the low fencing in 2015, renewed the sewerage and laid gravel, the strip remained visually one with the garden and a clear distinction between [defendants'] plot including the strip and the public sidewalk remained visible. The fact that [defendants] did not make the strip completely inaccessible (with gate and high fencing) does not, contrary to what has been argued by the municipality, detract from the foregoing, because this is not a decisive circumstance as long as by the actual exercise of power the possession of the municipality is noticeably terminated (HR 26 May 2023; ECLI:NL:HR:2023:784 r.o. 3.2.3). Since the visual whole of the (front) garden was visible to anyone, the municipality could not have inferred other than that [defendants] claimed to be the owner of the strip and that this was outwardly recognizable.”

So in that approach, if a strip of land actually looks like part of the neighbor's garden or yard - because they are maintained and landscaped together - that can sometimes be enough to constitute possession.

What does this mean for you?

Whether you fear that a neighbor has taken possession of your land, or you wonder whether you yourself have become the owner by prescription: the assessment is always customized. The actual situation, the visibility of the use, its duration and whether it was ever authorized all play a role. Do you have questions about your situation? If so, please take contact on with one of our specialist property lawyers.