Luke Hung
The Supreme Administrative Court rendered the 109-Pan-373 Decision of July 9, 2020 (hereinafter, the “Decision”), holding that a possessor who applies for registration of the ownership by prescription should assume the burden of proof to substantiate the fact of possession with an intent to exercise the ownership.
According to the facts underlying this Decision, the Appellant applied to the Appellee (the Department of Land Administration of Keelung City Government) to register the land ownership at issue by prescription. The Appellant attached decisions rendered by the Keelung District Court and the Taiwan High Court and a non-prosecutorial disposition rendered by the Keelung District Prosecutors Office as supporting documents for the reason for ownership registration by prescription. The Appellant served a land registration supplement notice to the Appellant to request supplement on the ground that the documents attached by the Appellant were incomplete. Although the Appellant subsequently made supplements, still the occupation evidence issued by neighbors were not attached. The Appellee issued a rejection notice (hereinafter, the “Original Disposition”) to reject the Appellant’s application on the ground that registration should be denied pursuant to law since the Appellant’s possession did not comply with laws and regulations. The Appellant brought an administrative action to set aside both the decision on the administrative appeal and the Original Disposition and to compel the Appellee to render an administrative disposition that grants the ownership registration according to the Appellant’s application for the ownership by prescription. The original trial court subsequently dismissed the action. Still dissatisfied, the Appellant appealed to reverse the original decision and set aside both the decision on the administrative appeal and the Original Disposition.
According to the Decision, Article 54 of the Land Law provides that any person who has peacefully and continuously taken possession of any land and may apply to be registered as its owner shall, during the registration application period, file an application for land ownership registration based on the occupation evidence issued by neighbors. Under Article 118, Paragraph 1 of the Regulations of The Land Registration, upon application for the registration of superficies by prescription after the general registration of land, documents supporting possession within an intent to exercise the superficies right, occupation evidence issued by neighbors or documents sufficient to prove the fact of the beginning of the possession and the state of continued possession at the time of registration application shall be submitted. In addition, Point 1 of the Guidelines for Reviewing the Registration of Superficies Obtained upon Completion of the Statute of Limitations provides that a possessor applying to register the superficies by prescription shall meet the prescription requirements under the Civil Code and follow Article 118 of the Land Registration Regulations. Therefore, the effect of the prescription on the acquisition of real estate is that, in principle, the possessor can only request to be registered as the owner, i.e., to acquire the right to request ownership registration and does not necessarily acquire ownership as a matter of course. Based on the foregoing reasons, the person applying for registration of ownership by prescription should assume the burden of proof to substantiate the fact that the possession is taken within an intent to exercise ownership.
The Decision further indicated that the original trial court explained clearly why the evidence provided by the Appellant was not sufficient to prove the fact that the Appellant had taken possession of the land at issue with the intent to exercise ownership. In addition, the original trial court also held that the photographs could not prove the location of the land at issue and that the land was occupied by the Appellant. The original trial court also argued that the occupation evidence by neighbors should be the evidence of occupation issued by users, land owners or residents of houses on neighboring lands and provided the explanation in detail as to why the photographs are not sufficient evidence to prove that the Appellant had taken possession of the land at issue with an intent to exercise ownership. The original trial court also explained why it was not possible to make a determination favorable to the Appellant even with the court decisions and non-prosecutorial disposition submitted by the Appellant. The original decision also took into account the Appellant’s argument that, apart from the fences, the construction of the parapets and the pavement of a concrete floor signify the exercise of the superficies, and that the construction of walls reflects the exercise of “the intent of the superficies” to exclude access of outsiders. Based on the foregoing reasons, it was concluded in the original decision that since the Appellant failed to prove the land at issue was possessed with an intent to exercise ownership and the time when the intent to exercise the superficies was changed to the intent to exercise ownership with respect to the possession of the land at issue. Since the original trial court concluded that the prescription for the Appellant’s acquisition of ownership could not commence, the assertion that the ownership by prescription was unacceptable. Since original trial court did not make a finding of fact for which there is no evidence, the original decision was not legally inappropriate.