Acquisitive prescription interrupted or not? The trap of a misdirected summons

You own a house in Avignon, with a garden giving onto a neighbouring plot that you have used for years as a passage to access your garage. One day, you receive a summons from the neighbour: he disputes your right of way. You think to yourself: 'At least this will stop the acquisitive prescription (the right to become owner by prolonged possession) that he might claim over my land.' Wrong! The Court of Cassation, in a decision of 13 July 2005, ruled: only an action for recovery of property interrupts acquisitive prescription. A simple legal action concerning another right (easement, boundary determination, etc.) is not enough. What few people know is that this distinction can overturn the outcome of a land dispute, and cost dearly to those who thought they had protected their right.

Now imagine you are a tenant in Carpentras, and you have occupied a plot adjoining your home for thirty years, cultivating it as your garden. The owner, who never said anything, dies. His heirs sue you to recognise a right of view. You thought that this action interrupted your thirty-year possession, preventing you from acquiring ownership by prescription? The same logic applies: an action for an easement is not an action for recovery. Your possession continues to run, and you could become owner of the plot despite the lawsuit. But beware, you still need to prove the conditions for acquisitive prescription (possession that is continuous, peaceful, public, unequivocal, and as owner).

In this article, we will dissect this little-known but crucial decision for any owner or occupier of real estate. We will see how it applies in practice, and above all how to avoid being caught off guard. Because in property law, a procedural detail can make the difference between keeping your property and losing it.

The facts: a story that happens every day

Mr Y... was the owner in Paris of several plots, including plot AC 19. His neighbours, the X... heirs, wished to access their property by crossing Mr Y...'s plots. They therefore sued Mr Y... to have it judged that he was not the owner of these plots, in reality seeking recognition of a right of way (the right to pass over another's land). In defence, Mr Y... made a counterclaim: he claimed exclusive ownership of plot AC 19, and joint ownership of another plot, AC 18, with the X... heirs and another neighbour.

The Tribunal de grande instance de Paris initially dismissed the X... heirs' claim, but recognised Mr Y...'s ownership of plot AC 19. However, the Cour d'appel de Paris, on 23 September 2003, reversed this judgment. It held that the X... heirs' claim was not an action for recovery of property, but an action seeking a declaration that Mr Y... had no right of ownership over the plots. Consequently, this action had not interrupted the acquisitive prescription in favour of Mr Y.... In other words, Mr Y... continued to possess the plots as if there had never been a lawsuit, and could still invoke acquisitive prescription to become owner.

Mr Y... appealed to the Court of Cassation. He argued that the X... heirs' action was indeed an action for recovery, since it disputed his right of ownership. The Court of Cassation dismissed his appeal, upholding the reasoning of the court of appeal. In my experience, I have come across cases where owners, confident that they had 'stopped the clock' on prescription by suing their neighbour for a nuisance, found themselves defenceless in the face of a possession that continues to run. This decision perfectly illustrates this trap.

The reasoning of the court — explained

The Court of Cassation relies on Article 2244 of the Civil Code (old, now 2241) which provides that prescription is interrupted by a summons. But the high court specifies that this interruption is only effective if the summons seeks to claim ownership of the property. In this case, the X... heirs did not ask to be declared owners of the plots; they only asked for a judgment that Mr Y... was not the owner. However, a negative action (which seeks to deny the right of another) is not equivalent to an action for recovery. The court of appeal had therefore correctly held that the acquisitive prescription had not been interrupted.

In other words, to interrupt acquisitive prescription, the claimant must himself claim ownership of the property. It does not matter that the action calls into question the possessor's right of ownership: the interrupting effect only applies if the claimant claims to be the owner. This solution is consistent in case law: it was reiterated by the Court of Cassation in a decision of 5 January 2010 (Civ. 3e, 5 Jan. 2010, No. 08-20.572). It aims to prevent an action concerning a real right other than ownership (easement, usufruct, etc.) from disturbing the possessor without clarifying the title of ownership.

However, beware: if the possessor is sued for recovery by the true owner, the prescription is interrupted. But in our decision, the X... heirs were not claiming owners. In short, interruption of acquisitive prescription requires that the legal action be an action for recovery of ownership of the property. Any other action, even if it indirectly disputes the possessor's right of ownership, has no effect on the prescription period.

What this changes for you — in practice

For owners: if you let someone occupy your land for years, and you sue them for a right of way or for damages, be aware that this does not stop the acquisitive prescription period (30 years for immovables). The possessor may still become owner if you do not act for recovery. Example: in Carpentras, Mr Dupont owns a field that he verbally leases to a farmer. After 30 years, the tenant may invoke prescription. If Mr Dupont sues him for unpaid rent, the prescription continues to run. He must imperatively bring an action for recovery of ownership to interrupt the period.

For purchasers: if you buy a property part of which has been occupied by a third party for a long time, you must check whether that third party is in the process of acquiring ownership by prescription. A simple action on your part to stop the occupation (e.g., eviction for trespass) will not interrupt the prescription if it does not claim ownership. It is better to bring an action for recovery upon acquisition.

For co-owners: if a co-owner uses a common part exclusively and for a prolonged period, the other co-owners must act for recovery of ownership of that common part, and not merely seek removal of the encroachment. Otherwise, the occupying co-owner could acquire ownership of that part by prescription.

In practice, if you are in this situation, you must: 1) identify the appropriate legal action (recovery and not merely a possessory action or easement), 2) act before the expiry of the prescription period (30 years). Consultation with a specialised lawyer is strongly recommended to avoid using the wrong legal basis.

Four tips to avoid this type of dispute

• Tip 1: Make a precise inventory of your property. Note encroachments, occupations without title, regular passages. Record the start dates of occupation. This will allow you to know if the prescription period is nearing its end.
• Tip 2: Do not wait to act for recovery. If a third party occupies your property without right, bring an action for recovery of ownership before the tribunal judiciaire, and not an action for eviction or damages. Only recovery interrupts prescription.
• Tip 3: Draft written contracts. If you grant a right of use (lease, loan for use), do so in writing. This will characterise a precarious possession (as tenant or borrower), which cannot lead to acquisitive prescription.
• Tip 4: Consult a lawyer before any summons. The choice of legal basis for your action is crucial. A simple error in classification may cause you to lose the benefit of interruption of prescription. A lawyer specialised in property law will be able to advise you.

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

Further reading: related case law and developments

The position of the Court of Cassation is consistent. In a decision of 5 January 2010 (No. 08-20.572), it held that 'acquisitive prescription is only interrupted by a legal claim seeking to claim ownership of the property'. This decision confirms the 2005 decision. Similarly, in a decision of 12 July 1995 (No. 93-14.663), the Court specified that an action for boundary determination does not interrupt acquisitive prescription, because it does not claim ownership.

On the other hand, if the owner sues the possessor for recovery, the prescription is interrupted, and a new 30-year period begins to run (subject to the rules on extinctive prescription). There is a line of case law that admits that an action for recovery may be implied, but the trend is strict: the originating document must expressly claim ownership.

For the future, it is likely that this case law will continue. It protects the good faith possessor against dilatory actions that do not challenge his title. As an owner, you must therefore be particularly vigilant about the nature of the action you bring.

Frequently asked questions

Q: Can I interrupt acquisitive prescription by a simple registered letter?
A: No, only a summons interrupts prescription. A letter, even with acknowledgement of receipt, has no interrupting effect.

Q: What should I do if I discover that a neighbour has occupied my land for 25 years?
A: You must bring an action for recovery of ownership before the expiry of the 30-year period. Consult a lawyer quickly.

Q: Must the action for recovery be brought before a specific court?
A: Yes, the action for recovery of immovable property falls within the exclusive jurisdiction of the tribunal judiciaire (formerly TGI).

Q: If I sue my neighbour for a right of way, does that interrupt acquisitive prescription over the land?
A: No, as the 2005 decision reminds us. Only an action for recovery of ownership of the land interrupts prescription.

Q: Is the acquisitive prescription period the same for movables and immovables?
A: No. For immovables, the period is 30 years (thirty-year prescription). For movables, it is generally 5 years.

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