UCan the owner be forced by a municipality to transfer his property to him, outside the procedures of “pre-emption” or“ expropriation”, both with some compensation?
In principle, no: the mechanism of acquiring property by “acquisitive prescription”, or “usucapion”, “cannot benefit the municipalities”, has recently (March 22, 2011 And March 8, 2012) said the Ministry of the Interior. However, the Court of Cassation fully authorizes it, as the following case shows.
On March 15, 2011, Andrée X, 70 years old, and Laurent Y, 31 years old, became, by inheritance, owners of a plot of 14 ares (1,400 square meters), located in the town of Cuges-les-Pins (Bouches -du-Rhone). This old wheat treading area, say “the area where we dance », has belonged to their family for generations; it is on the death of Antoine X, their respective father and great-grandfather, that it returns to them. They plan to build there.
Alas, they are summoned before the tribunal de grande instance of Marseille by the municipality, which intends to be declared holder of the land. Acting on the basis of the thirty-year prescription, provided for by the Civil Code (articles 712, 2258, 2261 And 2272, in particular)she argues that, since 1971, that is for more than thirty years, she has behaved publicly as the owner of the plot, without being contradicted: she has built a car park there, which she has subsequently tarred and planted with trees , without opposition from the owner.
The court acknowledges that she “enjoys peaceful, public, continuous, unequivocal and proprietary possession for more than thirty years” and that she has thus acquired the title.
Financial counterpart
The heirs, furious to see this property escape them without financial compensation, appealed. They affirm that the municipality could no longer, since 1er July 2006, date of entry into force of general property code of public persons (CG3P), claim acquisitive prescription, because this is not one of the modes of acquisition of property that it lists. What the Aix-en-Provence Court of Appeal approves, June 3, 2021.
The municipality is appealing in cassation and its lawyer, Mr.e Hervé Hazan, maintains that the Court of Appeal violated the Civil Code on the one hand, by judging that it would reserve acquisitive prescription only to private persons, and the CG3P on the other hand, by judging that its enumeration would be “exclusive”. He emphasizes that case law recognizes this method of acquisition consistently, including since 1er July 2006. The Court of Cassation found in his favor, and quashed the appeal decision, on January 4 (2023, 21-18.993)saying that “public persons may acquire by prescription”.
She emphasizes ” earnings “ of this mode of acquisition, which “responds to a reason of general interest of legal certainty” : it confers a title deed to the possessor of a property whose possession has not been contested within a certain period. The heirs of Antoine X can therefore only attack the deceased, owner of the land from 1961 to 2010: he should have reacted as soon as the municipality transformed it into a parking lot.