Dealing with 'grabbing' of government owned land can save billions

The unlawful use of government land by citizens, or so-called 'land grabbing', occurs regularly. A piece of pavement, for example, is popular, but municipal roadsides, sports fields, green areas and forest land are also occupied. After ten or twenty years Dutch municipalities might lose this land to the citizen who took it. The reason for this? Prescription. The costs involved for the state? Estimates run into billions of euros. In the research report The protection of publicly owned land from acquisitions through long-term possession, Björn Hoops, Associate Professor of Private Law and Sustainability, maps how government land might be better protected against prescription.

The main recommendation offered by Hoops is to abolish the acquisition of government owned land by prescription with immediate effect. Hoops: ‘This will clarify the legal state of affairs and protect all government owned land'. In order to prevent the deterioration of government-owned land, Hoops also recommends considering the following two measures:

• unless the land is needed for a public project, the government may not demand the eviction of the occupied land; or
• occupants receive a fixed fee for the proper management of the land.

Hoops: ‘Prescription means that when the period of time determined by law for the use of another's land has expired, the user acquires ownership and the owner loses ownership. The land must have been used in such a way that the user appears to be owner, for example by erecting a fence. The loss of government-owned land can have far-reaching consequences. First, as a society, we lose access to land for infrastructure and public services. Land for railways, streets, cables and pipes. Secondly, we lose money. After all, government land represents the assets of the government and therefore of our society. If the land turns out to be needed for a government project, we will have to buy it back at high cost or expropriate it. Based on previous research, I estimate that we are talking about billions of euros.’

Hoops looked at solutions to this problem in the law of Alberta (Canada), Belgium, Colorado (USA), Curaçao and Sint Maarten, and Italy. The exclusion of prescription as in Alberta and Colorado appears to be the best, according to Hoops, because it protects government land, creates the most clarity and thus prevents litigation. However, the exclusion can lead to governments no longer properly enforcing or maintaining their property. For that reason, Hoops advises to consider the two aforementioned measures.

Björn Hoops is Chair of Private Law and Sustainability at the Private Law and Notary Law of the Faculty of Law of the University of Groningen. At the moment he is a full-time Marie Curie-Fellow at the Università degli studi di Torino.

This article was published by the Faculty of Law.