Kuwait Court of Cassation principle number 513

Summary: - A person erecting a building, planting, or constructing installations with his own materials on land which he knows is owned by another and on which he has no right to make them, or where his ignorance thereof arises from gross fault. Its effect. The landowner may request removal of the additions at the expense of the person who made them, together with compensation, within 1 year from the time he learned 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 value of the land. Article 882, Civil Code. Its implication. Removal requires bad faith on the part of the person erecting the building or planting, in that he knows the land is owned by another and that he has no right to make the additions he made thereon, and that the landowner request removal within 1 year from the time he learned of what had occurred on his land. Inferring knowledge. A matter of fact. - The challenged judgment's inference, on sound reasons having an established basis in the papers, that the landowner brought his action for removal of the wall more than 1 year after the date he learned of an encroachment upon his property, and its ruling that the action was inadmissible. Criticism thereof is a factual argument. Its inadmissibility. Rule: It is established in the jurisprudence of this Court that if a person erects a building, plants, or constructs other installations with his own materials on land which he knows is owned by another and on which he has no right to make them, 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 1 year from the time he learned 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 value of the land, pursuant to Article 882 of the Civil Code. This means that a request for removal requires: 1- that the person erecting the building or planting know that the land is owned by another and that he has no right to make the additions he made thereon, that is, that he be acting in bad faith; 2- that the landowner request removal within 1 year from the time he learns of what has occurred on his land. Inferring knowledge or its absence is a question of fact independently assessed by the judge of merits by virtue of his authority to assess the evidence and documents submitted in the proceedings, provided that he bases his judgment on sound reasons sufficient to support it. That being so, the challenged judgment based its ruling that the appellant's counterclaim for removal of the disputed wall was inadmissible, because it was filed more than 1 year after the date he learned 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 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, and from the 2 letters of the fourth respondent—in his official capacity—dated 6/4/2009 and 26/5/2009. The first stated that there was a complaint by the appellant concerning encroachments upon his property, and the second included the receipt of the survey statement on 26/3/2009 confirming this encroachment based on his complaint. It concluded that his knowledge was established as of that date. Since he brought his action requesting removal of those installations on 5/5/2010, that is, after 1 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 sound inference by the judgment, has an established basis in the papers, and is sufficient to support its ruling. Criticism of it in this regard therefore amounts to no more than an argument concerning matters within the court of merits' authority to assess, which fall outside the review of the Court of Cassation, and is consequently without foundation.