LJN: AA5960, Dutch Supreme Court R98/151HR
The facts:
In this case the following may be assumed to be the established facts and circumstances. On May 24, 1995, Anton bought two pieces of real estate from a person named Bernard. Pursuant to the contract of sale, delivery was to be effected before 31 December 1995. Bernard, who had departed from his country leaving behind substantial tax debts, issued a blank power of attorney to Anton in December 1995, stating that Anton had already paid the purchase price. In connection with Anton’s tax debts the Tax Collector levied an executory attachment against Anton on the aforesaid real property. At that moment delivery had not been effected to Anton.
In reaction to this, Anton commenced summary proceedings with the Court of First Instance requesting that by provisionally enforceable judgment, the Court shall order that the attachment be lifted. By judgment enforceable by anticipation dated 12 June 1996 the Court of First Instance granted the action filed by Anton ordering the State to terminate the attachment on the real property within two times twenty-four hours. On June 13, 1996, the entry of the attachment was removed from the public registers. Subsequently, Anton, availing himself of the power of attorney granted by Bernard, caused the real property to be delivered to himself on June 19, 1996. But the State lodged an appeal with the Joint Court of Justice of the Netherlands Antilles and Aruba against the interlocutory judgment of June 12, 1996. On appeal the court, delivering judgment on June 17, 1997, overturned the judgment of the Court of First Instance, to the extent that the lifting of the attachment had been ordered. In its considerations the Court’s finding, briefly summarized, was that Bernard was the legal owner of the real property at the time the attachment was levied, and that obligatory rights of Anton do not bar the legal validity of the attachment.
By virtue of this judgment the Tax Collector caused the removal of the attachment from the public registers to be revoked. On July 27, 1997, Anton sold one of the real properties to a third party. In order to enable the delivery of this property, he requested the Tax Collector to lift the revived attachment (once again). The Tax Collector refused to do this. In view of this refusal Anton initiated summary proceedings at the Court of First Instance requesting that the State and the Tax Collector shall be ordered, by provisionally enforceable judgment, to lift the (revived) attachment on the real property.
Court of First Instance
The Court of First Instance disallowed Anton’s action. By virtue of the ruling of the Supreme Court dated February 23, 1996, an attachment that has been lifted by a provisionally enforceable judgment, will be revived by the reversal of such judgment, with the proviso that the attaching party must respect the rights acquired by a third party at the time the attachment had been lifted. All this, of course, on condition that said third party must have been in good faith, and in the Court’s opinion Anton cannot be considered as such.
Anton filed an appeal with the Joint Court of Justice against the judgment of the Court of First Instance. The grounds in the appeal on the main issue is addressed against the finding of the Court of First Instance that exclusively the right obtained by third parties in good faith in the period between the lifting of the attachment and the reversal of the respective judgment, must be honoured upon the revival of the attachment.
COURT OF APPEAL
An attachment lifted by a provisionally enforceable judgment will revive by reversal of that judgment on appeal, with the proviso that changes in the legal status of the attached property must be honoured in the period between the lifting and the reversal (Dutch Supr. Crt. 23 Feb. 1966, NJ 1996,434). In this case the ownership of the real properties were transferred by Bernard to Anton in the period between the lifting and the reversal. As a consequence, they were removed from the assets of the garnishee, so that the attachment could not be revived. It is not true that this effect can only be achieved by a transfer to the acquirer in good faith. This would not be consistent with the purport of the provisional enforceability of the lifting of the attachment, which is aimed at enabling the garnishee to freely dispose of the respective property. It is furthermore so that a court that lifts an attachment by provisionally enforceable judgment, may attach the condition to said judgment that a security deposit determined by the Court, shall be made (Supr. Crt. 20 January 1995, NJ 1995, 413).
SUPREME COURT
The lifting of an attachment by the Court is a constitutive decision, which calls a new legal status into being. The main rule for constitutive judgments is that they only cause the new legal status to take effect the moment when they have become final. The time when the attachment is considered to be lifted is the moment at which the judgment terminating the attachment, has become final and conclusive. Up to that point in time the attachment retains its effective force. In case the judgment terminating the attachment is overturned on appeal, the attachment will remain in effect without interruption. But the court may declare the lifting of the attachment to be enforceable by anticipation. In that case the attachment will be considered as lifted from the moment the judgment is delivered and it will continue to be regarded as lifted in case an ordinary legal remedy is sought against the court decision. If, subsequently, the judgment declared to be provisionally enforceable, is reversed on appeal, the attachment will revive on the understanding that alterations in the status of the attached property must be respected in the period between the lifting and the reversal.
In case of revival the attaching party will run the risk of losing the possibility of recovery due to the fact that other parties might acquire title to the property in the period after the judgment lifting the attachment and before the reversal on appeal. This risk can be limited by requesting the court to lift the attachment on the condition that security shall first be provided. In addition, the attaching party can of course oppose the provisionally enforceable judgment. In this way the means of recourse is applied in order to suspend the execution of a judgment lifting the attachment and ordering the lifting of the attachment. Although it was clear that Anton wanted the attachment to be lifted in order to enable him to deliver the goods to himself, the Island Tax Collector refrained from taking any of those actions.
Essence
In case a person’s property has been attached, that person, in his capacity as entitled party, may alienate or mortgage said property, but the attachment entails that the acts performed by him, are void vis á vis the attaching party. As such, the attachment continues to follow the property. But if, for some reason, the attachment is lifted by the Court, and if the judgment is declared to be enforceable with immediate effect, then the entitled party is at liberty to alienate his property. If the judgment lifting the attachment is overturned at a later time, the alienation carried out by him, will remain valid. This may be prevented by the attaching party by requesting the court to declare the judgment to be provisionally enforceable or by requesting the court to lift the attachment on condition that security shall first be provided.
Obtaining of extinctive prescription
LJN: AT 8240, Supr. Crt. C04/118HR
(The case occurred in the Netherlands, but the articles correspond with the articles in the Netherlands Antillean Civil Code and the essence is also valid in this case)
Case study
Henk and Bert are neighbours. Henk is owner of lot A since November 3, 1998. Bert is owner of lot B since December 9, 1971. The issue in this case is whether Bert has by prescription acquired the ownership of the strip of land, measuring 325m² in total, which area has for many years been used as part of his driveway, but is part of the cadastral lot belonging to Henk. It is an established fact that Bert has been using this strip of land since 1971. Henk has raised the argument that this is not a case of acquisitive prescription since Bert has always enjoyed a personal right of use, as is evidenced by the notarial deed of conveyance of February 18, 1981. The deed of conveyance of 18th February 1981, whereby the legal predecessors of Henk acquired the parcel of land, states, inter alia, “that the buyers are accepting the purchased property on this day, vacated and free from any lease, but insofar as part of the driveway is concerned, the purchased property is accepted with the enjoyment of rent for the benefit of Messrs Comar (owner of lot B at that time), which property is sufficiently known to the parties, without any further description…….”.
Bert contends that he has exercised possessory actions as far back as in 1971, with respect to the strip of land, because a sand wall was erected and the land was paved with rubble and gravel. According to Bert’s contentions the period of prescription had already started since 1971 and the prescription has never been interrupted. In order to defend the deed of 1981, Bert presented witnesses testifying that in 1981 Bert went to the owner of lot A back then, to ask if he could continue to use the cart road in the same manner as he used to do, which means that he does not have to pay rent.
Relevant articles
This case study addresses the acquisition by extinctive prescription pursuant to article 3:105 of the Civil Code which provides that a person who owns property at the time when the prescription of the action to terminate said possession is completed, will acquire said property even though his possession was not based on good faith.
Another relevant article is article 3:306 of the Civil Code which provides that the rights of an action become prescribed by the lapse of 20 years. Of equal importance in this regard, is article 3:111 of the Civil Code which provides that once a person has started to enjoy a right on behalf of another person by virtue of a legal relationship, the person will continue to enjoy that right under the same title, as long as no change has been effected, either as a consequence of an action by the person on whose behalf a right is being enjoyed, or as a consequence of a resistance to said person’s claim.
Final decision
Bert has not succeeded in proving that, until 18 February 1981, he had not used the strip of land under the title of rent. The witness statement that, in 1981, Bert approached the then owner of lot A asking him if he could continue to use the cart path in the same manner as he used to do, cannot be interpreted differently than that. Bert was apparently of the opinion, then, that he was not the owner but the user of the strip of land. Once a person has started, by virtue of a legal ownership, to use property for another person, the user will continue to benefit from the property under the same title, unless it becomes clear that a change has been effected, or an act has been committed by the person on whose behalf the property is being used, or that resistance has been levied against the person’s right (article 3:111 Civil Code) and that it must be assumed that Bert had used the litigious strip of land as renter until 1981, so that up to that period we cannot speak about ownership. The consequence of this is that when Henk initiated the action against Bert, the period of 20 years which is required for the possibility of prescription, had not yet been completed. A current prescription, if any, was interrupted by the serving of the subpoena.
REAL RIGHT