Skip to content

The cadastral boundary does not match the fence: who owns the strip of land?

6 August 2026Juriaan de Vries

The cadastral boundary is not the ownership boundary

A fence 1.8 metres high stood beside the cadastral boundary, leaving a strip of roughly 25 m2 on the other side. On 17 July 2026 the Supreme Court upheld the ruling that the buyers of the building plot had acquired the entire cadastral parcel, including that strip. Advocate General Bartels advised setting the judgment aside, arguing that what the parties see on the ground is what counts.

Boundary dispute after the plot was surveyed

Both parcels were held by the same family until 2013. Around 2005 that family put up an iron fence that has every appearance of a boundary fence, but that does not stand on the cadastral boundary. The triangular strip in between, called the "taartpunt" (pie slice) in the pleadings, has since formed part of the garden of the house.

In February 2013 the family sold the building plot behind that fence. The deed of sale states the address, the cadastral designation and the size of 1,185 m2 (11 ares and 85 centiares), to which a cadastral drawing signed by the parties was attached. Transfer followed on 2 April 2013. The house was sold on in 2014 and was acquired by the present neighbours in 2018.

In 2021 the plot buyers had their parcel surveyed for landscaping. The survey showed that the fence did not stand on the cadastral boundary. They wanted to move it to that boundary, the neighbours refused, and both the Oost-Brabant District Court and the 's-Hertogenbosch Court of Appeal ruled in the plot buyers' favour.

Supreme Court: the deed of sale was a permissible starting point

The appeal in cassation was dismissed. The court of appeal had put the Haviltex standard first, and it was free to begin its interpretation of the contract of sale with the description of the property sold in the deed of sale (para. 3.2.3). That description, together with the signed cadastral drawing, produced the provisional conclusion that the parties had the whole cadastral parcel in mind.

The court of appeal then weighed the counter-arguments. The buyers did not know that the fence stood beside the cadastral boundary, and they were buying a building plot. Absent any statement from the sellers to that effect, they did not have to expect that a small part of the parcel fell outside the sale (para. 3.2.4).

The complaint about the burden of proof also failed: the court of appeal did not rule on Section 150 DCCP, but on whether a third party may rely on the interpretation of someone else's contract of sale (para. 3.1.2). The address in the deed of transfer merely indicates the location (para. 3.3.2). What remained is an assessment of the facts, which the Supreme Court reviews only for adequacy of reasoning. The remaining complaints were dismissed under Section 81(1) of the Judiciary Organisation Act (RO).

Advocate General: title and transfer, each with its own standard

The opinion of Advocate General Bartels advised setting the judgment aside and remitting the case, and considered nine grounds partly well-founded. Transfer of land requires a valid title (Section 3:84 DCC) and a notarial deed of transfer entered in the public registers (Section 3:89 DCC). The two may differ in extent, and the narrower of them determines what passes.

Title and transfer each have their own standard of interpretation. The contract of sale is interpreted under the ordinary Haviltex standard, the transfer by objective standards. In a boundary dispute the cadastral map has no independent significance: there is no statutory presumption that the cadastral boundary is the ownership boundary, and the map does not form part of the public registers.

In ordinary transactions between private individuals, the Advocate General argues, parties go by what they see on the ground and not by ares and centiares. The legislative history puts it more sharply: no social interest is served by maintaining boundaries on a map that form no part of the legal consciousness of the parties. Attaching great weight to the map also pushes parties into commissioning surveys they currently do without.

Criticism: an objectified reading of the contract of sale

Two objections are central. The court of appeal took the interests of third parties consulting the public registers into account when interpreting the sale, and thereby put the text of the deeds first. That is an objectified standard, and it governs the transfer rather than the contract of sale. Third parties are protected by a separate route, under Sections 3:26 and 3:88 DCC.

The second objection concerns the fence. The court of appeal made its weight depend on whether the buyers knew of the discrepancy. According to the Advocate General, not knowing points the other way: it suggests that they did not consider the cadastral map important and relied on what they could see. The Supreme Court passed over the first objection by reading the legal-certainty consideration as not load-bearing (para. 3.2.6). The question the opinion raises therefore remains open, and the argument remains available for the next case in which a court of appeal takes the cadastral designation as its starting point.

What does this mean for buyers of land?

Anyone who wants the visible boundary to govern must get it into the deed: a description that delimits the property in words along the fences, ditches or trees on the ground. Such a factual description prevails over the cadastral designation where the two differ. An address is not enough, and a signed cadastral drawing attached to the deed of sale works the other way.

In the decisions analysed, the lower courts do depart from the cadastral boundary, but only where the deed provides a basis for it. The Amsterdam Court of Appeal inferred from the description of the property as agricultural land that the strip with the row of trees and concrete posts fell outside the sale. The Hague Court of Appeal left an allocation drawing (uitgiftetekening) out of account precisely because it had not been attached to the deed.

For the neighbour on the defending side the position is different. He may assert that the acquisition by his opponent lacks a valid title, which is a denial rather than an affirmative defence, but without concrete facts he will not get as far as the taking of evidence. The fence presumption in Section 5:36 DCC also applies only where the fence actually serves to separate the two properties, which the court of appeal did not accept.

The court of appeal set aside the possession presumption in Section 3:119 DCC by applying Section 5:47(2) DCC. That is open to question: under a 2016 Supreme Court judgment, judicial determination of a boundary is available only where neither party asserts a particular boundary line, or where the line asserted cannot be proved. The Advocate General noted in a footnote that the court of appeal wrongly treated this case as a boundary determination. That consideration was not challenged in cassation and therefore stands.

Frequently asked questions

Is the cadastral map proof of my boundary?

Not in itself. What governs is the contract of sale and the deed of transfer, and who thereby acquired which piece of land. A boundary reconstruction by the Land Registry makes the cadastral boundary visible on the ground, but does not decide who owns it. According to a former chief registrar of the Land Registry, small deviations have crept into the majority of cadastral boundaries.

What if the fence does not stand on the cadastral boundary?

Ownership then depends on what the deeds say. If they contain no reference to the visible boundary marker, the cadastral designation stands and the strip belongs to the cadastral parcel, even if the neighbour has used it as a garden for years. For that user, the remaining route is in principle acquisitive prescription, an issue that fell outside this dispute.

Can a neighbour rely on a contract of sale between other parties?

Yes. An interested third party may assert, and if necessary prove, that the title underlying the transfer to his opponent is defective. He thereby denies the ownership claimed. He must, however, put forward concrete facts: general assertions do not lead to the taking of evidence.

Cited case law

Supreme Court

Advocate General

Courts of appeal and district courts

Juriaan de Vries — lawyer at Prime Law, specialising in corporate and commercial litigation. See the disclaimer.

See also