The Municipality Is Registered as the Owner of Your Agricultural Land – What Rights Do You Have

In practice, cases are not rare in which agricultural land used for decades by private persons turns out to be recorded as municipal property under Art. 19 of the Ownership and Use of Agricultural Land Act (ZSPZZ). In this article we examine a real case in which the court recognised the possessor’s right of ownership against the municipality.

Many owners of agricultural land learn of the problem only when they ask for a sketch, a tax assessment, a notarial deed through a status check, or a reference in the cadastre. It is then that they discover that the land their family has held, cultivated and maintained for decades is recorded as municipal property — often as land under Art. 19 ZSPZZ.

In practice, this means that in the cadastral map, in the registers or in documents of the municipality, the property is recorded as municipal, although it is actually used by a private person or a family. It is possible that the owner has built a fence, cultivates the land, mows it, has planted fruit trees, uses it as part of a yard or a farm, and yet the municipality claims that the property is part of the municipal land fund.

Such disputes are not isolated cases. In the practice of our firm we have worked on matters in which agricultural land held and farmed by families for decades has been recorded as municipal property under Art. 19 ZSPZZ.

Most often the problem arises with old agricultural land that has been held within real boundaries but for which the owners have no documents of title. Such land has often been handed down within the family orally, has been used by a grandfather, a father, heirs, has been cultivated for years on end, but has never been settled in documents.

At a certain moment the municipality may take the view that the property is land under Art. 19 ZSPZZ. It may then be included in lists of municipal property, be recorded as municipal ownership, be entered as "municipal private" property in the cadastral registers, or be included among the pastures, the meadows, the grassland or the lands of the municipal land fund.

To the owner this usually looks like a fait accompli. In reality it is not always so.

It is important to know that the entry in the cadastre or a deed of municipal ownership does not by itself create a right of ownership. They may reflect a claim of the municipality, but if there is no valid basis for acquisition, that claim can be challenged before the court.

Art. 19 ZSPZZ governs the agricultural land that remained after the restoration of the rights of the owners. This does not mean, however, that every piece of agricultural land without a clear document automatically becomes municipal.

One of the main questions in such cases is whether the particular property was subject to restoration under the procedure of the ZSPZZ at all. If the property was never taken away, was never included in a TKZS (a former agricultural cooperative) or a DZS (a former state agricultural farm) or another agricultural organisation, was never collectivised and remained in the actual control of private persons, then it may turn out that the preconditions for treating it as land under Art. 19 ZSPZZ were not present.

This is essential. The ZSPZZ is a restitution law. It governs the restoration of rights taken away or affected, not a first-time acquisition of ownership by the municipality over every agricultural property with unsettled documents.

In a similar case the court accepted precisely this: it is not enough for the property to be agricultural in nature. It must be proved that it was affected by the processes of cooperation, collectivisation, taking away or nationalisation. If such a change in the legal position is not proved, it cannot automatically be assumed that the property became municipal.

The biggest mistake is for the owner to accept that, once the property is recorded as municipal, there is nothing he can do. This is not true. The entry is the beginning of the review, not the end of the dispute.

Another common mistake is to wait too long. If the municipality starts including the property in lists for lease, recording it, granting it for use or refusing to issue documents, delay may complicate the defence.

If the municipality is recorded as the owner of your agricultural land, the first step is to establish on what basis it claims this right. Not every entry is lawful. Not every deed of municipal ownership is insurmountable. Not every reference to Art. 19 ZSPZZ is sufficient.

The possible defence depends on the facts, but in similar cases what is usually checked is:

• whether the property was ever included in a TKZS, a DZS or another agricultural organisation;
• whether there is evidence of a taking away, a nationalisation or a collectivisation;
• whether an application for restoration under the ZSPZZ was filed;
• whether the property was held within real boundaries;
• who used it, since when and in what way;
• whether there is a fence, plantations, buildings, farming, mowing, cultivation;
• whether there is a deed of municipal ownership and on what basis it was drawn up;
• whether the municipality actually performed acts of an owner, or merely relied on administrative entries.

If it is established that the property has been privately held for decades on end and no valid basis for acquisition by the municipality is proved, an ownership claim may be brought. In many cases this is a positive declaratory claim under Art. 124, para. 1 of the Civil Procedure Code, by which the court is asked to recognise that the person is the owner of the property.

This is one of the most frequently asked questions. The answer depends on whether the property was actually municipal property and what its status is.

The municipality often objects that the property cannot be acquired by prescription, because it was municipal, was part of the municipal land fund or was recorded as pasture. This objection is not always well-founded.

For the prohibitions on the acquisition of municipal property by prescription to apply, it must first be proved that the property actually became the property of the municipality on a valid legal basis. If the municipality does not prove this, it cannot, merely through recording or an entry in the cadastre, block the rights of the possessor.

Acquisitive prescription under Art. 79 of the Property Act requires the possession to be open, peaceful, continuous and with the intention of holding the property as one’s own. This is not proved by words alone. It is proved through concrete facts: fencing, cultivation, planting, mowing, maintenance, use as part of a farm, absence of disputes, witnesses, expert evidence and documents.

In a similar case examined, the court held that the possessor had acquired ownership by prescription, because the properties had been used for decades as part of one common farm, had been fenced, maintained and cultivated, and the municipality had not proved that it had become the owner under Art. 19 ZSPZZ.

Disputes over agricultural land recorded as municipal under Art. 19 ZSPZZ are complex, but they are not hopeless. In many cases the problem does not stem from a lack of real rights, but from an incorrect administrative recording, a formal entry, or an automatic assumption that a given property has become part of the municipal land fund.

If your agricultural land is recorded as municipal, if it is recorded as land under Art. 19 ZSPZZ, if the municipality has drawn up a deed of municipal ownership, or if you have been refused recognition of rights over land that your family has held and cultivated for years, do not automatically accept that the property is lost.

When a property has been held, maintained and farmed for decades on end, and the municipality cannot prove a valid basis for acquisition, a real possibility of successful judicial defence often exists.

The first step is to gather all the necessary documents. It is also important to identify persons who can testify about the way and the duration of the use of the property.

After that, a legal assessment is needed of whether the municipality genuinely has a legal basis to be recorded as owner, and of what defence is most suitable in the particular case — an ownership claim, defence through acquisitive prescription, or a combination of several legal approaches.

The Buzgyova & Partners law firm has extensive practical experience in cases against municipalities over agricultural land, land under Art. 19 ZSPZZ, unlawful recording and the defence of ownership through acquisitive prescription. If you find yourself in a similar situation, seek legal advice in good time, before giving up your claims or accepting that the municipality has definitively acquired the property.