Summary

The subject matter of this dissertation is accession to immovable property. Accesssion means that the right of ownership envelops a former independent right of ownership of a different object.

Dutch law distinguishes between three modes of accession to property:

This dissertation discusses the rationale behind these different modes of accession to immovable property and searches for an overarching criterion to answer the question of when an object accedes to an immovable property. The dissertation concludes that the main criterion for the first two modes of accession is the common opinion (‘verkeersopvatting’) as this best serves the principle of legal certainty: that which appears to be a single object or a single right of ownership is legally treated as a single object /right of ownership.

The common opinion is not a useful criterion for the third mode of accession: accession of an adjacent plot. The boundaries of a plot of land are an artifice of the system of land registration and are not outwardly visible. For that reason, it is the principle of publicity rather than the common opinion that provides the best safeguard for legal certainty. Land ownership rights need to be entered on a register that is publicly accessible to third parties.

The first chapter deals with Article 3:3 DCC. The first paragraph of this article defines the following as immovable:

In addition to Article 3:3 DCC, Article 5:20, paragraph 1 subsection e DCC states that a land owner also owns all buildings and constructions that are permanently attached to his land. This rule incorporates the latin maxim ‘superficies solo cedit’.

This raises the question of when a building or construction that is placed on the soil can be considered to be attached permanently to the land thus making it immovable in a legal sense.

In the Portacabin decision of 1997 the Dutch Supreme Court ruled that a building or construction is immovable for the purposes of Article 3:3 BW if according to its character and construction the object is destined to remain in its place permanently. Whether it is technically feasible for the building or construction to be moved is of no importance in answering the question of whether it is permanently attached to the land in the view of the Court.

According to the Court this ‘permanent designation’ (‘duurzame bestemming’) needs to be determined in light of:

The Supreme Court emphatically held that the common opinion is not the proper standard for determining whether a building or construction is movable or immovable. This is striking because the two indications formulated by the Court to determine whether a building or construction is designated to remain permanently in one place roughly resemble the common opinion. Both indications hinge on the outward appearance of the permanent designation to a passer-by: is the object likely to remain in one place or will it be moved some day? This is not very different from the common opinion as a standard. Instead of using these indications to determine whether an object is immovable or not, this thesis proposes that they be treated as a standard for the more specific question of whether something is permanently attached to the land or not. This view has the added benefit of reconciling the indications formulated by the Court with the common opinion as a standard.

This is not the only application of the common opinion in Article 3:3 BW. The Article speaks of ‘buildings and works’. The Dutch Civil Code does not provide a definition for these words. This was a deliberate decision by the legislature. According to legislative history it is not the Code but the common opinion that gives meaning to these terms.

In view of the foregoing, the common opinion can be considered the legal standard for determining whether a building or work is immovable and accedes to a particular plot of land. For the second mode of accession, accession of component parts, it is clear that the common opinion is the proper standard. The first paragraph of Article 3:4 DCC states that: ‘A component part of a thing is anything commonly considered to form part of that thing.’ The second paragraph of Article 3:4 DCC provides for a physical criterion: ‘A thing attached to a principal thing in such a manner that it cannot be separated therefrom without substantial damage to either is a component of that thing.’2

The common opinion is explicitly mentioned as a criterion for accession in the sense of Article 3:4 BW. Although both criteria mentioned in Article 3:4 BW are seen as independent and separate requirements for accession, this dissertation holds that the common opinion is the leading criterion for accession based on Article 3:4 BW.

Chapter 3 shows, by using the example of a ‘terraced house’, that some objects which can be seen as a component part of a bigger whole according to the physical criterion of Article 3:4, paragraph 2 DCC are nevertheless considered as single objects according to the common opinion. One terraced house in a block cannot be removed without substantial damage to one of the adjoining properties. Based on Article 3:4 BW subsection 2 this house could therefore be considered as a component part of the block of houses. However, based on the common opinion a terraced house is nevertheless seen as an independent property. This leads to the conclusion that not everything that meets the criterion of Article 3:4 subsection 2 is considered a component part. The common opinion of subsection 1 is for this reason the leading criterion.

According to Article 5:20 paragraph 1, subsection e DCC the ownership of a plot of land also comprises: ‘buildings and works forming a permanent part of the land, either directly or through incorporation with other buildings or works, to the extent that they are not part of an immovable thing of another person’.3

If a building or work is partly built on an adjoining plot of land, there are two conflicting modes of accession: on one hand the part of the building that is found on the neighbouring property can be considered a component part of the rest of the building (horizontal accession), but one could also say that because of the attachment to this (adjacent) land that part of the building or construction (vertically) accedes to the neighbouring land.

The final phrase of Article 5:20 subsection 1 under e BW, ‘to the extent that they are not part of an immovable thing of another person’, determines that in this situation horizontal accession prevails if the construction that protrudes on to another’s plot of land cannot be seen as an individual object. For example, a basement that extends into a neighbouring plot of land does not accede to that plot of land but instead to the building it forms part of. The question whether a construction is an individual object or not (and thus whether the object accedes horizontally or vertically) is decided according to the common opinion: does the construction appear to be a component part of another building or construction? If so, then the construction accedes to the other building. If instead it appears to be a separate building or construction then it accedes to the adjacent land.

The influence of the common opinion can also be seen in answering the question of to which land a building accedes. If a building is in the middle of two adjacent parts of land, the common opinion, based on factual circumstances (such as the position of the entrance or the existence of an easement), determines to which plot of land it accedes.

A construction or work only accedes horizontally if the right of ownership of that object cannot be vertically divided. This is best illustrated by the case in which the remnants of a bunker covered two adjoining plots of land. The remnants in one plot of land could not be separated from the other part without causing significant damage to the whole. The Amsterdam Court of Appeals decided to split the remnants according to the plot boundary, thus granting each land owner partial ownership of the remnants, because the focal point of the remnants could not be situated in either of the adjoining plots and the remnants did not form a cohesive whole. Whether vertical division is possible is also decided on the basis of the common opinion.

Article 5:20 paragraph 2 DCC provides an exception to the rule for accession stated in the first paragraph of Article 5:20 DCC for networks consisting of one or more cables or pipelines designed for transporting solid, fluid or gaseous substances, energy, or information that is or will be laid on or above the land of other persons. The second paragraph stipulates that the right of ownership of such a network belongs to the person who rightfully laid such network (or their assignee).

The common opinion is relevant here for three reasons. It determines: 1) whether one or more cables or pipes can be considered to form a network within the meaning of article 5:20 paragraph 2 DCC; 2) the size of the network, and 3) if a network can be split into a smaller partial network.

This dissertation concludes that the common opinion is decisive for the accession of and to networks.

The importance of the common opinion for the question of whether accession takes place or not is evident from the foregoing. The use of the common opinion as the leading criterion can be found in the rationale for accession

Accession is a method of property loss; it means after all that a right of ownership is extended to encompass a formerly independent right of ownership. If these two formerly independent ownerships were not held by the same person, the ownership of the acceded thing ceases to exist. And if the former independent ownership was encumbered with a limited right, this limited right is also extinguished. Conversely, if the principal object which subsumes another object was encumbered with a limited right, this right will also cover the acceded object. Accession can therefore have important legal consequences, and these consequences can only be accepted if the alternative is even less desirable.

The alternative, as discussed in chapter 4, would be a system of property law without rules on accession. In such a system, one could have ownership of a component part, or could burden it with a property right. According to this dissertation, this would lead to an enormous fragmentation of property rights. For example, the supplier of bricks which are used to build the house of X would continue to be the owner of those same bricks subject to retention of title. Additionally, if the bricks are pledged to a bank, the pledge would not be extinguished but instead continue to exist. This would promote legal uncertainty. How does one determine the boundaries of one’s right of ownership if the physical boundaries are no longer decisive?

Considering the resulting injustice of the alternative, rules on accession are indispensable and justified by the principle of legal certainty. Nevertheless, having regard for the far-reaching consequences that accession can have, such as loss of property, one should exercise restraint in applying the rules. Using the common opinion as a leading criterion for accession within the meaning of both Article 3:3 in conjunction with Article 5:3 DCC, and Article 3:3 paragraph 1 in conjunction with Article 5:20 paragraph 1 DCC would (ideally) mean that things that appear to be a whole (based on factual circumstances) are legally treated as such. The common opinion would be based on the outward appearance of an object. In other words, the right question would be if something outwardly appears to be (part of) a whole.

And that is simultaneously the reason why the common opinion plays no part in the third and last mode of accession discussed in this dissertation: accession of property rights in the plane.

Accession can also take place in the plane: if the owner of a plot of land acquires an adjacent plot of land and both plots are not burdened with a property right, it becomes one right of ownership according to Dutch law.

Land has a special position as a legal object in property law. Land is the only object of which the boundaries of ownership are not determined by its physical boundaries (it has none). Instead the boundaries of land are defined by human effort only: by registration in the public records. These boundaries can be changed. The common opinion based on factual circumstances therefore plays no role in accession in the plane. Instead legal certainty is safeguarded by the fact that all property rights need to be registered in public records, specifically in the land register.

Struycken states:

Legal certainty is the foremost purpose of registration of land. In the Netherlands not all deeds are registered. A characteristic of the Dutch system (which is referred to as a negative or semi-positive system) is that it does not guarantee its own correctness. Chapter 7 discusses how a person other than the person mentioned in the public record can own a plot of land because he or she has acquired it by prescription. The common opinion comes into play here. The justification for acquisition by prescription is based on the fact that the law after a certain time should conform to actual circumstances. A person who considers himself owner of a certain object, and whose intentions are outwardly apparent, can after a certain period acquire this object by prescription.

This dissertation on accession to immovable objects focuses on two main questions: 1) which modes of accession can be distinguished according to Dutch law, and 2) is there one main criterion to answer the question of how accession to immovable objects takes place. It is time to answer these questions.

Dutch law distinguishes three modes of accession. The first mode is accession of a building or construction to land because the attachment to land makes it immovable and therefore part of the ownership of the land (Article 3:3 in conjunction with Article 5:20 paragraph 1 DCC). The second mode is the accession of component parts (Article 3:4 in conjunction with Article 5:3 DCC). The third and final mode of accession is accession in the plane, i.e. when somebody acquires a piece of land that adjoins a plot that is already owned by that same person provided that both pieces of land share the same legal status or he or she acquires a piece of land by prescription and a formerly limited right established by the possessor is affirmed to envelop that which was acquired by prescription.

The common opinion is the decisive criterion for determining whether an object accedes according to the first two modes of accession mentioned. That which society considers to be one object becomes one object in a legal sense. This is determined by outward appearances. The application of this standard best serves legal certainty, the underlying purpose of the principle of unity.

Since outward appearances are lacking in the plane, the common opinion is an inadequate standard for the third mode of accession. Legal certainty for property rights pertaining to a plot of land is served by registration in the public records. However, when the legal reality as laid down in the public records deviates for a long period of time from the actual circumstances, as determined according to the common opinion, a piece of land may be acquired by prescription. As a result, the information contained in the public record will no longer be accurate.

I would like to conclude with a quote by Heyman. No-one wants to abolish the principle of accession, instead:

This thesis argues that this criterion is the common opinion.