Legal Certainty is Yesterday’s Justification for Acquisitions of Land by Prescription. What is Today’s?

Abstract

Legal certainty is the traditional justification of land acquisitions by prescription in the Netherlands and elsewhere. However, as land information systems become more comprehensive and reliable, this justification increasingly loses its foundation. Only where a transfer is invalid despite a registered transfer deed, is this justification still fully persuasive. This article examines alternative justifications of land acquisitions by prescription and assesses whether the requirements for acquisitions by prescription under Dutch law already reflect these justifications. The owner's omission to monitor the use of the land is arguably a persuasive justification for the loss of ownership by prescription and is fully reflected by the requirement of 'possession'. However, it fails to explain why a possessor who knowingly occupies somebody else's land should become owner. This article proceeds to evaluate the labour theory, the personhood theory, the theory of human flourishing, and utilitarian approaches. These theories persuasively explain why a bad faith possessor should become owner, but are not reflected by Dutch law. As a last step, this article considers the reduction of wealth inequality as a justification of land acquisitions by prescription and concludes that tempting though this justification may be, prescription is not an adequate means to combat inequality.