The Acquisition of Immovables through Long-Term Use

In this book, which is part of the book series of the Common Core of European Private Law, reporters consider legal institutions that allow persons who have occupied private or public land of others to acquire that land through mere long-term use.
Editor(s):
Björn Hoops, Ernst Marais
Series:
The Common Core of European Private Law
Volume:
3
book | published | 1st edition
January 2022 | lxii + 724 pp.

Paperback

€149.-

ISBN 9781839701658


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ISBN 9781839702419

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Details

Launched in 1993, The Common Core of European Private law is the oldest ongoing collective comparative law efort in Europe. Putting cases at their heart, each book in this series analyses a selected legal topic on the basis of real and fctional facts across diferent European and other jurisdictions. The likely outcome of the decision and its underlying legal rules are clearly set out case by case and jurisdiction by jurisdiction. In addition, the national reporters put the respective legal rules into the relevant cultural context. In this way, the collaborative efort brings not only the inner structures of national laws in Europe to the fore, but also the diferent cultural sensitivities forging
their development in the frst place. It allows a reliable map of what is diferent and what is common in the various private laws across Europe to be drawn, without any specifc agenda for or against the further harmonisation of private law in Europe.

The series comprises more than 20 volumes of work of more than 300 academics and is an invaluable tool to understand private law across Europe.

In this book, which is part of the Common Core of European Private Law series, reporters consider legal institutions - such as the well-known acquisitive prescription and adverse possession - that allow squatters and other persons who have occupied the private or public land of others to acquire that land through mere long-term use.

Rules permitting such acquisition have existed since Roman times and are said to promote legal certainty as regards ownership of land. The reporters investigate how these rules work in their legal systems today and whether this justifcation still holds water, especially given that land is now registered in most countries. Registration seems to obviate the necessity for rules permitting acquisition of land through mere long-term use, as land registration systems create clarity as to who owns the land.

The continued existence of these rules also comprises a human-rights dimension. Landowners enjoy constitutional property protection under many constitutions and other legal instruments. The loss of protected ownership draws the constitutional validity of rules on long-term use into question. Yet, the rights to housing and human dignity are also relevant, especially where such users have lived on the land for extended periods and regard it as their home or where they are vulnerable to landlessness. As such, these rights must be balanced against each other.

The reporters represent 19 jurisdictions from all over the world, including civil law, common law and mixed legal systems, and are from both the global north and the global south. A comparison between these legal systems and their experience with their rules on long-term use reveals a common core and guidelines against which these rules may be measured in other countries. As such, this book will be valuable to practitioners dealing with both private and public law, academic lawyers and government ofcials tasked with land use planning.

With contributions by Miriam Anderson (University of Barcelona), Michel Boudot (Université de Poitiers), Dmitry Dozhdev (Moscow School of Social and Economic Sciences), Magdalena Habdas (University of Silesia in Katowice), Karoline Rakneberg Haug (Norwegian Parliamentary Ombud for Scrutiny of the Public Administration), Björn Hoops (University of Groningen), Eran S. Kaplinsky (University of Alberta), John A. Lovett (Loyola University New Orleans College of Law), Ernst J. Marais (University of Johannesburg), Francesco Mezzanotte (University of Roma Tre), Matti Ilmari Niemi (University of Eastern Finland), Alasdair Peterson (University of Glasgow), Héctor Simón (University Rovira i Virgili, Tarragona), Jozef Štefanko (University of Trnava), Johan Van de Voorde (University of Antwerp), Filippo Valguarnera (Stockholm University), Leon Verstappen (University of Groningen), Emma J.L. Waring (University of York) and Una Woods (University of Limerick).

Table of Contents

Table of Contents and Preliminary Pages (p. 0)

PART I. INTRODUCTORY MATTERS

A Comparative, Historical and Theoretical Introduction to the Law on Acquisitions of Immovables through Long-Term Use (p. 1)

PART II. CASE STUDIES

General Introductions (p. 43)

Case 1. Living on Another’s Land without Permission (p. 93)

Case 2. Unknown Owner (p. 207)

Case 3. Extending Boundaries of Residential Land onto Land Owned by a Municipality (p. 279)

Case 4. Impugned Transfer (p. 319)

Case 5. Boundary Disputes (p. 371)

Case 6. Creation of Limited Land Rights after the Occupation (p. 451)

Case 7. Unlawful Use by Tenants (p. 489)

Case 8. Sale without Registration (p. 529)

Case 9. Offer to Purchase/Rent Land (p. 557)

Case 10. The Missing Heir (p. 579)

PART III. GENERAL CONCLUSIONS

Comparative Analysis – Case 1 (p. 617)

Comparative Analysis – Case 2 (p. 635)

Comparative Analysis – Case 3 (p. 643)

Comparative Analysis – Case 4 (p. 647)

Comparative Analysis – Case 5 (p. 651)

Comparative Analysis – Case 6 (p. 661)

Comparative Analysis – Case 7 (p. 665)

Comparative Analysis – Case 8 (p. 669)

Comparative Analysis – Case 9 (p. 673)

Comparative Analysis – Case 10 (p. 675)

The Final Search for the Common Core of Acquisitions of Immovables through Long-Term Use (p. 677)

About the series:

The Common Core of European Private Law

Launched in 1993, The Common Core of European Private Law is the oldest ongoing collective comparative law effort in Europe. Putting cases at their heart, each book in this series analyses a selected legal topic on the basis of real and fictional facts across different European jurisdictions. The likely outcome of the decision and its underlying legal rules are clearly set out case by case and jurisdiction by jurisdiction. In addition, the national reporters put the respective legal rules into the relevant cultural context. In this way, the collaborative effort brings not only the inner structures of national laws in Europe to the fore, but also the different cultural sensitivities forging their development in the first place. It allows a reliable map of what is different and what is common in the various private laws across Europe to be drawn, without any specific agenda for or against the further harmonisation of private law in Europe. The series comprises more than 20 volumes of work of more than 300 academics and is an invaluable tool to understand private law across Europe.

General Editors
Mauro Bussani, University of Trieste (Italy) – University of Macao (People’s Republic of China)
Ugo Mattei, University of Turin (Italy) – University of California, Hastings College of Law (USA)

Scientific Board
Aurelia L.B. Colombi Ciacchi, University of Groningen (the Netherlands)
Anna di Robilant, Boston University (USA)
Francesca Fiorentini, University of Trieste (Italy)
Antonio Gambaro (Emeritus), State University of Milan (Italy)
James Russell Gordley, Tulane University (USA)
Marta Infantino, University of Trieste (Italy)
Alessandra Quarta, University of Turin (Italy)
Mathias Reimann, University of Michigan (USA)
María Elena Sánchez Jordán, University of La Laguna (Tenerife, Spain)
Filippo Valguarnera, Stockholm University (Sweden)
Franz Werro, University of Fribourg (Switzerland) – Georgetown University Law Center (USA)

More about this series