A right of way granted for over 30 years does not create acquisitive prescription for the occupier

France

Under French law, acquisitive prescription (so-called “usucapion”) is essentially a legal concept enabling an occupier to acquire a property by the effect of possession during a certain period of time if certain strict conditions are met.

An occupier may be able to claim an acquisitive prescription over a property occupied for at least thirty years. This statutory period can even be reduced to ten years if certain conditions set out by Article 2272 of the French Civil Code are met.

In order to claim an acquisitive prescription, an occupier must evidence that the possession is:

  1. continuous during the statutory period: without interruptions exceeding one year as per the legal provisions of Article 2271 of the French Civil Code;
  2. peaceful: the occupier must not have taken possession of the property by assault or battery;
  3. notorious: the possession must be done in a manner that is visible to everyone; and
  4. unequivocal: the occupier must act as the owner of the property.

In its decision issued on 12 January 2022[1], the “Cour de Cassation” – the highest court of the French judiciary – clarified that the mere occupation of a property as part of an easement cannot give rise to a valid claim for acquisitive prescription.

In this particular case, the beneficiaries of an easement of a right of way were, in essence, claiming an acquisitive prescription over the parcels they had occupied for over 30 years.

We believe that since the occupiers only occupied the parcels under the authorization and conditions imposed by the owner, and even if the other conditions were met, the court found that the possession was equivocal and prevented any claim for adverse possession.

This is a reminder that all the conditions must be fulfilled before considering a claim for acquisitive prescription.

 


1. 12 January 2022 No. 20-21.709