Kuwait Court of Cassation principle number 108

Summary: - A person erecting a building, planting, or constructing structures with materials of his own on land that he knows belongs to another and that he has no right to make such additions, or whose ignorance of that arises from gross fault. Its effect: the landowner may request removal of the additions at the expense of the person who made them, with compensation, within one year from the time he learns of their creation. His failure to request removal, or his request to retain the additions. His obligation to pay their value as subject to removal or to pay the increase they caused in the land’s value. Article 882, Civil Code. Its implication: removal requires bad faith on the part of the person carrying out the building or planting, in that he knows the land belongs to another and that he has no right to make the additions he made to it, and that the landowner request removal within one year from the time he learns of what occurred on his land. Inference of knowledge is a matter of fact. - The challenged judgment’s inference, on reasonable grounds having an established basis in the documents, that the landowner brought his action for removal of the wall after one year had elapsed from the date he learned of an encroachment upon his property, and its ruling that the action was inadmissible. The challenge to it is an argument on matters of fact. It is inadmissible. Rule: It is established in the jurisprudence of this Court that if a person erects a building, plants, or constructs other structures with materials of his own on land that he knows belongs to another and that he has no right to make such additions, or if his ignorance of that arises from gross fault, the landowner may request removal of the additions at the expense of the person who made them, with compensation if warranted, within one year from the time he learns of their creation. If he does not request removal, or requests retention of the additions, he is obliged to pay their value as subject to removal or to pay the increase they caused in the land’s value, pursuant to Article 882 of the Civil Code. This means that a request for removal requires: 1- That the person carrying out the building or planting knows that the land belongs to another and that he has no right to make the additions he made upon it, that is, that he is in bad faith. 2- That the landowner request removal within one year from the time he learns of what occurred on his land. Inferring knowledge or its absence is a matter of fact whose assessment lies independently with the trial judge, by virtue of his authority to assess the evidence and documents submitted in the action, provided that he bases his judgment on reasonable grounds sufficient to support it. That being so, the challenged judgment based its ruling that the appellant’s incidental action seeking removal of the wall in dispute was inadmissible, because it was brought after one year had elapsed from the date he learned of a building encroachment upon his property, on its inference from the action’s papers and documents that such knowledge existed. It derived this from the record of receipt of the survey transaction issued on 25/3/2009, which he submitted before the expert, concerning an encroachment upon the boundaries of his property based on his complaint, as well as the two letters of the fourth respondent—in his official capacity—dated 6/4/2009 and 26/5/2009. The first reported a complaint by the appellant about encroachments upon his property, and the second stated that a survey report had been received on 26/3/2009 confirming this encroachment based on his complaint, concluding that his knowledge was established from that date. Since he brought his action requesting removal of those structures on 5/5/2010, that is, after one year had elapsed from the date he learned of them, it is inadmissible under Article 882 of the Civil Code. This is a reasonable inference by the judgment, has an established basis in the documents, and is sufficient to support its ruling. The challenge to it in this respect is therefore no more than an argument concerning matters within the trial court’s authority to assess, which fall outside the review of the Court of Cassation, and is consequently without basis.