Claim for re-establishment of rights

Claim for re-establishment of rights

Since the Act of April 25, 2014[1] the holder of a right of passage or exit can file for a possessory action called reïntegranda by virtue of article 1370 of the Judicial Law.
 
The reïntegranda is a property claim which can be filed by any holder of an immovable (the owner, the lessee, the usufructuary,...) when there is factual evidence of violence in case of disturbance of possession. The practical advantage of this claim is that it can end the disturbance of possession in exercising ownership on immovables without discussions regarding property, thus in a fast and simple way.
 
Until the Act of April 25, 2014, reïntegranda was only possible for immovables or rights that were susceptible to acquisitive prescription. Article 1370 of the Judicial Law determined that non-continuous and/or non-apparent servitudes cannot be obtained through acquisitive prescription. Therefore one could not file a claim to reïntegranda in case of disturbance of possession of a legal or conventional servitude.

In its judgment of 13 October 2011, the Constitutional Court ruled that Article 1370 of the Judicial Law was violating the principle of equality “since it excludes the holders of a legal or conventional servitude from the possibility to file a claim to reïntegranda”.[2]
 
For this matter, the legislator meets article 27 of the Act of April 25, 2014, which provides that the pre-requisite that it must involve immovable goods/rights that are susceptible to acquisitive prescription, “is not applicable when it involves a legal or a conventional servitude and when the denial or disturbance of possession is caused by violence or similar facts”.
 
Therefore, the holder of a right of passage or exit can now also file for reïntegranda, for example if he/she is confronted with the placement of a barrier that limits the enjoyment of his/her right.[3] 

[1] BS, May 14 2014.
[2] Constitutional Court October 13, 2011, nr. 151/2011, BS December 15 2011, Judicial Law 2011-12, 1803, note by V. Sagaert.
[3] V. Sagaert, “Erfdienstbaarheden van uitweg of overgang voortaan beschermd tegen bepaalde bezitsstoornissen”, RW 2014-15, 2.