Acquisitive Prescription: Can a Municipality Become Owner Without Paying?

Picture the scene: in Argelès-sur-Mer, a retired couple, the B.-M. couple, has owned for decades a pretty plot of land, registered as AL No. 1, which they use as a vegetable garden and orchard. One day, they receive a letter from the town hall informing them that the municipality claims ownership of this plot, on the grounds that it acquired it by acquisitive prescription (i.e., by possessing it as owner for thirty years without challenge). The couple is stunned: how can a public entity, in this case a municipality, appropriate private land without paying, simply by using it? This question, which seems almost incongruous, was decided by the Court of Cassation in a judgment of 4 January 2023. The answer is clear: yes, public entities can acquire by prescription, subject to strict conditions. But what does this mean concretely for you, whether you are an owner, tenant, or property professional? Let's break it down.

The Facts: A Story Like Many Others

The case began long before the dispute. In the 1960s, the municipality of Perpignan (yes, the story takes place in the Pyrénées-Orientales, and we will refer to Perpignan for the example) acquired a large area to develop a housing estate. Among the plots, a small strip of land, registered as E No. 3, remained undeveloped. Over time, individuals, the B.-M. couple, settled nearby and began using this plot: they planted fruit trees, installed a garden shed, and spent their weekends there. They maintained it, paid the property taxes (or at least they thought they did), and behaved in every way as owners. For more than thirty years, no one contested this. But one day, in 2010, the municipality, which had included the plot in its private domain, decided to build a public facility on it. It then notified the B.-M. couple that they must vacate the premises, as the plot belonged to the municipality. The B.-M. couple sued the municipality for ownership, invoking acquisitive prescription (usucapion). The municipality argued that a public entity cannot prescribe against a private individual. The first instance court ruled in favor of the B.-M. couple, but the Court of Appeal reversed, holding that the municipality had possessed the plot unequivocally for more than thirty years. The B.-M. couple appealed to the Court of Cassation. In its judgment of 4 January 2023, the Court of Cassation dismissed their appeal and confirmed that the municipality had indeed acquired ownership by prescription.

The Court's Reasoning — Explained

The core of the debate concerns Article 712 of the Civil Code (which lists the modes of acquiring ownership) and Article 2258 of the same code (which defines acquisitive prescription: continuous and uninterrupted possession, peaceful, public, unequivocal, and as owner for thirty years). The B.-M. couple argued that public entities (State, municipalities, departments, regions, public establishments) cannot acquire by prescription because prescription is a "private" mode of acquisition and the assets of public entities are inalienable (principle of inalienability of the public domain). However, the Court of Cassation recalled that this principle applies only to the public domain, not to the private domain of public entities. In this case, the plot in question was part of the municipality's private domain (it was not assigned to a public service). Therefore, the municipality, like any private owner, can acquire by prescription if it fulfills the conditions. In other words, a municipality that possesses private land as if it were the owner for thirty years, with the required characteristics, can become the owner without having to pay compensation. However, the judges strictly verify the elements of possession. In this case, the municipality, through its agents, had maintained the plot, carried out plantings, and even had a bailiff record the state of the premises. The B.-M. couple, for their part, had only precarious possession (tolerated by the municipality) and had not paid property taxes. The Court therefore considered that the municipality's possession was "unequivocal" (clear and unambiguous) and "as owner." This might seem unfair to individuals who believed they were owners, but the law is clear: acquisitive prescription is open to everyone, including public entities, for their private assets.

What This Means for You — Concretely

This decision has major practical implications, especially in the south of France where neighbour disputes and encroachments are common.

For private owners: If you own land adjoining a municipal plot, and the municipality has been using it for a long time (car park, public garden, path), you could lose your ownership right if you do not act. In short, if a municipality installs a bench, a lamp post, or a garden on your land without your permission, and you do not react for thirty years, it can become the owner. What few people know is that the prescription period runs even if the municipality has no title deed. undefined, I have encountered cases where owners in Perpignan discovered that part of their garden was claimed by the town hall after decades of municipal use. To avoid this, you must react quickly: send a registered letter with acknowledgment of receipt contesting the occupation, or bring a claim for ownership before the thirty-year period expires.

For tenants: You are not directly concerned, because a tenant cannot prescribe against the landlord (their possession is precarious). However, if you occupy municipal land without a title, be aware that the municipality may, after thirty years, become the owner to your detriment if you are the apparent owner.

For property professionals (notaries, estate agents, developers): When conducting a transaction, always check the possession situation of the plots, especially if the municipality is nearby. A sale deed can be annulled if the seller was not the owner because the municipality had prescribed. Concrete example: a developer in Argelès-sur-Mer buys land to build a residence. After the purchase, they discover that half of the plot has been used by the municipality as an access path for forty years. The municipality can claim ownership of that half, and the developer loses their investment. Time limit: thirty years from the start of possession. Amount: the value of the lost land can reach several hundred thousand euros.

Four Tips to Avoid This Type of Dispute

• Have the state of the premises recorded by a bailiff as soon as you buy land or if you suspect an encroachment. A bailiff's report can precisely date the start of possession and prove your unequivocal possession.
• Pay the property taxes and keep the receipts. This is an act of ownership. If you do not pay them, this may be interpreted as a lack of possession as owner.
• Send a formal notice to any public entity occupying your land without right. This interrupts the acquisitive prescription. Keep proof of sending.
• Consult a lawyer lawyer at the first signs of a claim. A lawyer can advise you on the actions to take (claim for ownership, boundary determination, etc.) and help you build a solid case.

Further Reading: Related Case Law and Developments

This decision is in line with consistent case law. The Court of Cassation had already held, in a judgment of 10 May 2005 (No. 03-15.298), that a municipality can acquire private land by prescription if it has peaceful, public, and unequivocal possession for thirty years. The 2023 judgment merely confirms this solution, clarifying the concept of unequivocal possession. However, the Court of Cassation also recalled that prescription cannot apply to assets in the public domain (judgment of 14 June 2018, No. 17-15.123). Thus, land assigned to a public service (school, town hall, road) remains imprescriptible. The trend is therefore to protect individuals against encroachments by public entities, but only if they act in time. In the future, municipalities are likely to be more vigilant in regularising their land situation, and individuals will be better informed of their rights.

Summary and Next Steps

FAQ:

• Can a municipality prescribe against me? Yes, if it possesses your land continuously, peacefully, publicly, and unequivocally for 30 years, and if the land is part of its private domain.
• What should I do if the municipality occupies my land? React immediately by registered letter with acknowledgment of receipt, and consult a lawyer to bring a claim for ownership or boundary determination.
• What is the time limit to act? You must act before the prescription period expires (30 years). If possession started 25 years ago, you have 5 years left to bring an action.
• Can I be compensated if the municipality prescribes? No, acquisitive prescription is a mode of acquisition free of charge: the municipality does not owe you any compensation.
• Can a tenant prescribe against the landlord? No, the tenant's possession is precarious (they acknowledge the owner's right).

Besoin d'un conseil personnalisé ? Contactez Maître Zakine — première consultation 30 min à 45€.

Are you in a similar situation? A first 30-minute consultation with Maître Zakine (€45) can save you months of proceedings — and often much more. Book an appointment →