The Taichung High Administrative Court rendered the 109-Su-175 Decision of October 7, 2020 (hereinafter, the “Decision”), holding that even if a person who obtains superficies through adverse possession produces a document to substantiate continued possession from the beginning to the registration application, this document can only prove the fact of possession but cannot be relied on as evidence to support possession with an intent to exercise the superficies.
According to the facts underlying this Decision, the Plaintiff applied to the Defendant for reverse possession of the land at issue, which was owned by X, not a party to this litigation. The Defendant subsequently held that there were matters to be supplemented and thus issued a supplementation notice to the Plaintiff (hereinafter, the “Supplementation Notice”), who was required to supplement a document that supports possession with an intent to exercise the superficies. However, since the Plaintiff failed to complete the supplementation matters within the required period, the Defendant rejected the Plaintiff’s application in accordance with Article 57, Paragraph 1, Subparagraph 4 of the Land Registration Regulations (hereinafter, the “Original Dispositions”). Dissatisfied, the Plaintiff filed an administrative appeal, which was rejected. Therefore, the Plaintiff brought an administrative action.
According to the Decision, a review of Article 772 of the Civil Code, to which Article 769 or 770 applies mutatis mutandis, suggests that the substantive requirement for reverse possession of superficies is continued possession of the land of another person with an intent to exercise the superficies to the extent that the statutory period has been reached. According to practical views, Article 118, Paragraph 1 of the Land Registration Regulations indicates that since reverse possession of superficies is premised upon the possessor’s intent to exercise the superficies, such fact shall certainly be proven by the applicant by submitting a supporting document. In addition, the so-called “supporting document for possession with an intent to exercise superficies” refers to a supporting document under the following circumstances: (1) the possession of the land should have been transferred but the registration is not yet completed if the creation of the superficies has been agreed between the parties; (2) an application for superficies registration has been filed but the registration is not yet completed; (3) the creation registration has been made, but the act of establishment is invalid; or (4) the possessor has indicated the intent to exercise the superficies in the beginning of his/her possession of the land of another person and a third-party proof has been obtained. As for the document submitted by the applicant to prove that continued possession of the land from the beginning of the possession to the registration application is substantiated by the neighbors of the land or by other proofs, this document can only prove the fact of possession and cannot be relied as evidence to prove possession with an intent to exercise the superficies.
It was further indicated in the Decision that according to the Plaintiff, the state that houses are built on the land at issue with his registered household has continued for over 100 years, his grandparents had built structures such as walls and houses on the land at issue in as early as 1908, as evidenced by a certificate issued by the borough leader and land value tax payment certificate. However, although the certificate issued by the borough office can prove the fact of possession by the Plaintiff and his ancestors, still the intent of the Plaintiff or his ancestors to possess the land at issue by exercising the superficies cannot be proven by the certificate issued by the borough office. In addition, the certificate from the borough leader can only prove the fact that A was the Plaintiff’s ancestor and had possessed the land at issue. In addition, the land value tax certificate can merely prove the fact that the Plaintiff possessed the land at issue and paid relevant taxes. Therefore, none of the above documents submitted by the Plaintiff can prove that the land at issue was possessed with an intent to exercise the superficies from the very beginning and is sufficient to serve as evidence to support possession with an intent to exercise the superficies. Since the Plaintiff failed to provide any supporting document to prove possession with an intent to exercise the superficies in accordance with Article 118, Paragraph 1 of the Land Registration Regulations, it is certainly impossible to conclude that the subjective criterion for reverse possession of superficies is met. Therefore, the Defendant’s finding that the application was not in order and the supplement was not made within the required period and rendition of the original disposition to reject the application should be found to be lawful and well-grounded.