Kuwait Court of Cassation principle number 409

Summary: - A person’s erection of a building, planting or construction of structures with materials of his own on land which he knows is owned by another and on which he has no right to make such additions, or where his ignorance thereof arises from gross fault. Effect. The landowner may request removal of the additions at the expense of the person who made them, together with compensation, within one year from the time he becomes aware that they were made. 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 value of the land. Article 882, Civil Code. Import. Removal is conditional upon the bad faith of the person undertaking the building or planting, in that he knows that the land is owned by another and that he has no right to make the additions he made on it, and upon the landowner requesting removal within one year from the time he becomes aware of what has occurred on his land. Inference of knowledge. A matter of fact. - The challenged judgment’s inference, on cogent grounds having an established basis in the case papers, that the landowner brought his action for removal of the wall after one year had elapsed from the date of his knowledge of an encroachment upon his property, and its ruling that the action was inadmissible. Challenge thereto constitutes factual argument. Inadmissible. Rule: It is established in the case law of this Court that if a person erects a building, plants, or constructs other structures with materials of his own on land which he knows is owned by another and on which he has no right to make such additions, or if his ignorance thereof arises from gross fault, the landowner may request removal of the additions at the expense of the person who made them, together with compensation if warranted, within one year from the time he becomes aware that they were made. If he does not request removal, or requests that the additions be retained, he is obliged to pay their value as subject to removal or to pay the increase they caused in the value of the land, pursuant to Article 882 of the Civil Code. This means that a request for removal is subject to the following conditions: 1- The person undertaking the building or planting must know that the land is owned by another and that he has no right to make the additions he made on it, that is, he must be acting in bad faith. 2- The landowner must request removal within one year from the time he becomes aware of what has occurred on his land. Inferring knowledge or its absence is a matter of fact which the trial judge independently assesses by virtue of his authority to assess the evidence and documents submitted in the action, provided that he bases his ruling on cogent grounds sufficient to support it. That being so, the challenged judgment based its ruling that the appellant’s incidental action for removal of the wall in dispute was inadmissible, because it was brought after one year had elapsed from the date of his knowledge of a building encroachment upon his property, on its inference from the case papers and documents that such knowledge existed. It derived this from the record of receipt of the surveying transaction issued on 25/3/2009, submitted by him before the expert, concerning an encroachment upon the boundaries of his property on the basis of 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 the existence of a complaint from the appellant concerning encroachments upon his property, and the second stated that the surveying statement had been received on 26/3/2009 confirming this encroachment on the basis of his complaint. It concluded 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 of his knowledge of them, it is inadmissible pursuant to Article 882 of the Civil Code. This is a cogent inference by the judgment, with an established basis in the case papers, and is sufficient to support its ruling. The challenge to it in this respect amounts to no more than an argument concerning matters within the trial court’s power of assessment, which fall outside the review of the Court of Cassation, and is therefore without basis.