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Installation of Graves on Another's Land and Acquisitive Prescription – Focusing on Supreme Court Rulings

In our country, managing the graves of ancestors is considered an important tradition and a family obligation. Although cremation seems to be the mainstream method of funerals recently, there are still many places where graves are located across the national territory.

However, many graves installed a long time ago are located on someone else's land. While there may have been an agreement with the landowner at the time of installation, often the parties who remember such agreements no longer exist over time, resulting in legal disputes regarding land ownership or whether to remove the grave.

In this article, we will examine the legal issue of whether "one can claim acquiescent prescription for a grave installed and managed on another's land for a long period?" In particular, we will look at what criteria the courts apply in such situations based on the recent Supreme Court ruling (2024Da300228).

[Question] If a grave is installed and 20 years have passed, can one claim ownership by acquisitive prescription?

[Answer]

In conclusion, simply claiming acquisitive prescription based on the fact that a grave has been installed and managed does not establish 'ownership.'

The Supreme Court ruled that the mere act of installing a grave is insufficient to determine that the land is occupied with the 'intent to own.' In other words, even if there is a grave of an ancestor on someone else's land, it can only be assumed that the intent is solely for the preservation and management of the grave, which does not automatically establish intention to exclusively own the entire land.

1. Issue: Can the installation of a grave be grounds for recognizing the intent to own?

Under our law, acquisitive prescription (Article 245, Paragraph 1 of the Civil Act) stipulates that one can acquire ownership if they have peacefully and openly occupied another's land with the intent to own for more than 20 years. However, managing and occupying a grave is a use of part of the land for a specific purpose (grave management), leading to disputes regarding whether this can be seen as 'possession with the intent to own.'

2. Facts of the Case

3. Supreme Court's Judgment

The Supreme Court ruling on January 23, 2025, 2024Da300228, overturned the lower court's judgment and remanded the case for the following reasons.

In other words, simply having a grave does not satisfy the requirements for acquisitive prescription, and to consider that the entire land is occupied with the intent to own, special circumstances are needed. This is also a reaffirmation of the legal principle that the Supreme Court has previously declared regarding the acquisition of grave rights by prescription (Supreme Court rulings on March 28, 1997, 97Da3651, 97Da3668, Supreme Court ruling on November 14, 2000, 2000Da35511, etc.).

4. Implications

This ruling can be seen as a clarification concerning the issues of acquisitive prescription for land with ancestral graves. The court emphasized that it must consider whether the land was used exclusively beyond simple grave management and whether that possession is based on 'intent to own.'

In particular, it should be noted that in this case, the party claiming acquisitive prescription was not merely asserting 'acquisitive prescription due to grave installation,' but asserted that 'there was a fact that the grandfather purchased the contested land.' Typically, in cases where acquisitive prescription is claimed based on a purchase, it is presumed that there is 'intent to own' under Article 197, Paragraph 1 of the Civil Act, but in this case, despite the claim of the purchase, the nature of the possession as 'installing and managing graves' did not inherently constitute 'exclusive possession and management,' meaning that the intent to own could not be presumed.

Ultimately, to assert 'prescription of ownership' beyond merely having installed a grave, one must secure objective evidence of continuous and exclusive use of the relevant land. Records of actually cultivating or using the land as a residence, in addition to merely managing the grave, can aid in proving peaceful possession. ------------- This Supreme Court ruling clearly stated that mere installation and long-term management of an ancestor's grave on another's land do not lead to recognition of acquisitive prescription. The act of managing a grave fundamentally does not provide a basis for recognizing exclusive possession of the land. In situations where the landowner and the grave manager differ, it is essential to keep in mind that there may be disputes regarding land ownership and use ongoing for more than 20 years, urging a review of legal measures in advance.

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