1. Facts of the case

In the present case, the plaintiff acquired land by a deed of donation that was not separated from the neighbouring property in any way, and there were no clear boundaries between the two properties. The plaintiff took possession after his predecessor, who also used the neighbouring land, which the owner of the neighbouring land tolerated, or did not oppose. The plaintiff therefore considered the neighbouring land to be part of the land he had acquired by law and continued in its possession as established by his legal predecessor.

The plaintiff thus possessed the neighbouring land as his own in error and regarded it as part of his land for a period of more than 10 years.

A dispute subsequently arose between the plaintiff and the owner of the neighbouring land over title to the neighbouring land. This dispute ultimately resulted in legal action. In the present case, both the court of first instance and the appellate court dismissed the action brought by the plaintiff in which he sought his declaration as the owner of the neighbouring land.

The courts argued that each owner should know the boundaries of their land and if they did not assure themselves of the course thereof and took possession of another party’s land, this could not objectively be in good faith.

2. Opinion of the Supreme Court of the Czech Republic

In the opinion of the Supreme Court of the Czech Republic, who also referred to its earlier case law, “it is also necessary to take the position of the owner of this held part of the neighbouring land into account; if he tolerated years of use of part of his land, it must follow that even he did not believe the subject of the neighbour’s holding was part of his land.”

The Supreme Court of the Czech Republic expressed the opinion that if someone acquires ownership of land and as a consequence of an excusable error (e.g. due to the fact the transferor handed over the land with the boundaries he had enjoyed) also takes possession of neighbouring land, he will be the legitimate holder (possessor).

If even the owner of the (held) neighbouring land does not realise the acquirer (and his predecessors) possess part of his land, this gives rise to an objective excusable error.

The conclusion that familiarisation with the content of the cadastral map is not a necessary requirement was accepted by the Constitutional Court of the Czech Republic in its judgment of 16 July 2013 in case no. I. ÚS 4365/12, which ruled on a constitutional complaint against the decision of the Supreme Court in case no. 22 Cdo 2197/2010 (nalus.usoud.cz).

The Supreme Court of the Czech Republic does not require a person who takes possession of land to re-measure its area or require demarcation of its boundaries, and therefore rejected the opinion of the court of first instance and the appellate court.

3. Conclusion

In a situation where there are no clear boundaries between neighbouring pieces of land and one of the owners uses, i.e. possesses the neighbouring land or part thereof in error, the Supreme Court of the Czech Republic inclined towards the principle that rights belong to the vigilant (vigilanti bus iura scripta sunt) and de facto require the owner of the held land to protest its wrongful possession.

In a situation where the owner of the held property does not protest, or even tolerates its unauthorised possession for an extended period of time, the holder will be considered as the holder in good faith and therefore the legitimate possessor, who may then acquire the neighbouring (held) land by acquisitive prescription.

For more information, please contact our office’s partner, Mgr. Jiří Kučera, e-mail: jkucera@kuceralegal.cz ; tel.: +420604242241.