Evicting an Occupant from Real Estate in Japan: What Does a Property Owner Need to Establish?

Japanese Attorney at Law - Bengoshi L.L.

• 9 min read

When a property owner in Japan seeks to recover possession of their real estate from an occupant, legal proceedings are often necessary. Such actions, typically based on ownership rights, require the owner (plaintiff) to meticulously prove certain "essential facts" (要件事実 - yokenjijitsu) to succeed. This article outlines the fundamental elements an owner must establish to evict an occupant and regain control of their property, whether it's land or a building, and also touches upon the specific scenario of requiring the removal of a building from the owner's land.

The primary legal basis for an owner to recover real estate is a vindicatory claim (所有権に基づく返還請求権 - shoyūken ni motozuku henkan seikyūken), which is a type of real right-based claim (物権的請求権 - bukken-teki seikyūken). This claim asserts the owner's right to have the property returned to them by anyone who is possessing it without a legitimate legal right against the owner.

This type of claim should be distinguished from a claim for recovery based on the termination of a contractual right, such as the expiry or cancellation of a lease agreement. While the outcome (recovery of possession) might be similar, the essential facts to be proven differ significantly. This article focuses on claims grounded purely in ownership.

II. Essential Facts for an Owner to Prove (Plaintiff's Burden) (所有者が証明すべき要件事実 - 原告の立証責任)

To successfully claim delivery of real estate based on ownership, the plaintiff owner must allege and prove two primary essential facts:

A. Establishing Plaintiff's Ownership (所有権の立証 - shoyūken no risshō)

  1. The "Current Ownership" Principle (「現在の所有権」の原則):
    The plaintiff must establish that they are the current owner of the real estate at the time of the conclusion of oral arguments in the court proceedings. Ownership at some point in the past is not sufficient if it cannot be shown to continue to the present.
  2. Methods of Proof and Pleading Strategies (証明方法と主張戦略):
    The specific facts the plaintiff needs to plead regarding their ownership can vary depending on the anticipated or actual arguments of the defendant (the occupant):Proof of ownership typically involves submitting the certificate of registered matters (登記事項証明書 - tōki jikō shōmeisho) from the Legal Affairs Bureau, which shows the registered owner. While registration creates a presumption of title, it can be challenged.
    • Defendant Admits Plaintiff's Past Ownership but Alleges Subsequent Loss: If the defendant acknowledges the plaintiff's ownership at a certain past point but claims the plaintiff subsequently lost ownership (e.g., by selling it to a third party, let's call them 'A'), the plaintiff would then need to plead and prove their ownership specifically at the time of A's alleged acquisition. If A's acquisition is not proven, the plaintiff's ownership is presumed to continue.
    • Plaintiff Acquired from a Previous Owner, and Defendant Also Claims Acquisition from that Same Owner: If the plaintiff claims to have acquired the property from a previous owner ('A'), and the defendant also claims to have acquired it from 'A' (potentially leading to a dispute over who has a superior claim, possibly involving perfection requirements like registration), the plaintiff should plead: (i) 'A's ownership at the time of the earlier of the two alleged acquisitions (plaintiff's from A, or defendant's from A), and (ii) the facts of the plaintiff's own acquisition from 'A'.
    • Defendant Admits Plaintiff's Current Ownership but Claims a Right to Possess: If the defendant admits the plaintiff's current ownership but argues they have a legitimate right to possess the property (e.g., under a lease from the plaintiff), then the plaintiff's burden of proving ownership is simplified by this admission (an "admission of right/title" - 権利自白 kenri jihaku). In such a case, the plaintiff can simply plead their current ownership.

B. Establishing Defendant's Possession (占有の立証 - senyū no risshō)

  1. The "Current Possession" Principle (「現在の占有」の原則):
    The plaintiff must prove that the defendant is currently possessing the real estate at the time of the conclusion of oral arguments. This is known as the "current possession theory" (gen-sen'yū-setsu), as opposed to merely proving past possession. The rationale is that a vindicatory claim arises from an ongoing infringement of ownership through possession.
  2. Proving Direct or Indirect (Agency) Possession (直接占有・代理占有の証明):
    "Possession" (占有 - senyū) under Japanese law (Article 180 of the Civil Code) means holding factual control over something. This control can be direct (the defendant physically occupies the property) or indirect through an agent (代理占有 - dairi senyū, Article 181 of the Civil Code).
    If the defendant's possession is disputed, the plaintiff cannot merely state that the defendant "possesses" the property. They must plead specific facts demonstrating the defendant's factual control, whether direct or through an agent. For example, if the defendant lives in the building, that would be a fact supporting direct possession. If the defendant subleases the property to another, they may still be an indirect possessor.

C. Defendant's Lack of Title: Not the Plaintiff's Initial Burden (被告の権原の不存在：原告の当初の立証責任ではない)

Crucially, the plaintiff does not need to prove as part of their initial cause of action that the defendant lacks a valid legal right or title (権原 - kengen) to possess the property. The burden is on the defendant to raise and prove the existence of such a valid title as a defense (see Section IV.C below). This was affirmed by the Supreme Court of Japan in a judgment dated March 1, 1960 (Minshu Vol. 14, No. 3, p. 327).

III. Special Case: Claim for Building Removal and Land Delivery (建物収去土地明渡請求)

A common scenario involves a landowner seeking not only the recovery of their land but also the removal of a building owned by the occupant situated on that land.

A. Nature of the Claim (請求の性質)

The prevailing view in Japanese legal theory and practice is that a claim for "building removal and land delivery" (建物収去土地明渡請求 - tatemono shūkyo tochi akewatashi seikyū) based on land ownership is generally considered a single vindicatory claim for the delivery of the land. The building removal aspect is seen as the necessary means or method by which the land is to be returned to its unencumbered state, rather than a separate cause of action. Several Supreme Court precedents support this interpretation (e.g., Judgment of the Supreme Court, June 6, 1958, Minshu Vol. 12, No. 9, p. 1384).

B. Additional Essential Facts: Defendant's Building Ownership on Plaintiff's Land (追加の要件事実：原告地上における被告の建物所有)

In addition to proving their ownership of the land and the defendant's possession of the land, the plaintiff in a building removal and land delivery case must specifically allege and prove that the defendant is possessing the land by virtue of owning the building situated on it. This typically involves proving:

  1. The existence of a building on the plaintiff's land.
  2. The defendant's ownership of that specific building. If the defendant's building ownership is disputed, the plaintiff would need to prove the facts establishing it.

IV. Common Defenses Raised by Occupants (Defendant's Burden) (占有者による典型的な抗弁 - 被告の立証責任)

Once the plaintiff owner establishes their prima facie case (ownership and defendant's possession), the burden shifts to the defendant occupant to prove a valid defense.

A. Challenge to Plaintiff's Ownership (所有権に対する反論)

  1. Defense of Loss of Plaintiff's Ownership (所有権喪失の抗弁 - shoyūken sōshitsu no kōben):
    The defendant may argue that although the plaintiff once owned the property, they subsequently lost ownership (e.g., through a sale to the defendant or a third party, or by acquisitive prescription by another party). The defendant must prove the specific facts leading to this loss of ownership by the plaintiff.
  2. Plaintiff's Rebuttals (原告の再抗弁 - saikōben):
    If the defendant alleges the plaintiff sold the property, the plaintiff might counter-argue (as a sai-kōben) that:
    • The alleged sale was a fictitious transaction made in collusion with the purported buyer (通謀虚偽表示 - tsūbō kyogi hyōji, Article 94(1) of the Civil Code) and is therefore void.
    • The sales contract was validly rescinded by the plaintiff (e.g., due to the buyer's non-payment).
    • The sales contract included a retention of title clause (所有権留保特約 - shoyūken ryūho tokuyaku), and the conditions for title transfer (e.g., full payment) have not been met.

B. Defense Concerning Perfection of Title (対抗要件の抗弁 - taikō yōken no kōben)

This defense is particularly relevant in situations involving competing claims to ownership, such as a "double sale" where the original owner sells the same real estate to two different parties. Japanese law (Article 177 of the Civil Code) stipulates that acquisitions or alterations of real rights in real estate cannot be asserted against third parties unless they are registered.

  • If the plaintiff claims ownership but has not registered their title, a defendant who subsequently dealt with the property (e.g., purchased it from the same original owner and registered their title, or acquired some other right like a lease from a registered owner) may raise the plaintiff's lack of registration as a defense.
  • The defendant asserting this typically needs to demonstrate they are a "third party with a legitimate interest" who is entitled to demand perfection from the plaintiff, and then make a legal assertion that the plaintiff cannot assert their ownership due to lack of perfection (this aligns with the "rights-defense theory" - 権利抗弁説 kenri-kōben-setsu).
  • The plaintiff's rebuttal would be to prove they have, in fact, properly registered their title or that the defendant is not a "third party" who can assert this defense against them (e.g., if the defendant is acting in bad faith to undermine a prior transaction they were aware of).
  • Alternatively, a defendant in a strong position might directly assert their own perfected title as a basis for the plaintiff's loss of ownership (対抗要件具備による所有権喪失の抗弁 - taikō yōken gubi ni yoru shoyūken sōshitsu no kōben).

C. Defense of a Valid Right to Possess (占有権原の抗弁 - senyū kengen no kōben)

This is perhaps the most common defense. The defendant argues that even if the plaintiff is the owner, the defendant has a legitimate legal right (kengen) to possess the property, enforceable against the owner.

  1. Common Examples:
    • A lease agreement (賃貸借契約 - chintaishaku keiyaku) with the plaintiff owner (or a previous owner whose rights are binding on the plaintiff).
    • A loan for use agreement (使用貸借契約 - shiyō taishaku keiyaku).
    • Other rights such as a superficies (地上権 - chijōken) or emphyteusis (永小作権 - eikosakuken), though less common in general commercial settings.
  2. Essential Facts for the Defendant to Prove:
    The defendant must allege and prove all the essential facts necessary for the formation and continued validity of their claimed right to possess. For example, if claiming possession under a lease, the defendant must prove:
    • The conclusion of a lease agreement with the plaintiff (or a party from whom the plaintiff derives title subject to the lease).
    • That the land was delivered to the defendant pursuant to that lease agreement.
    • That the lease term has not expired or been validly terminated.

If the defendant successfully proves a valid right to possess, the owner's vindicatory claim will be dismissed. The owner would then typically need to pursue remedies based on the termination or breach of that specific right (e.g., terminate the lease for non-payment of rent and then sue for eviction based on lease termination).

A notable point for building removal claims: If a defendant who owned and registered a building on the plaintiff's land subsequently transfers ownership of the building to a third party but remains the registered owner of the building, they generally cannot evade their obligation to remove the building and deliver the land by simply arguing they no longer own the building (Judgment of the Supreme Court, February 8, 1994, Minshu Vol. 48, No. 2, p. 373).

V. Ancillary Claim for Damages (不法占有に基づく損害賠償請求)

Owners seeking eviction often also claim monetary damages for the period of unlawful occupation (不法占有 - fuhō senkyo).

A. Basis in Tort Law (不法行為法)

This claim is typically based on tort law (Article 709 of the Civil Code). The essential facts the owner must prove are:

  1. Infringement of a Right: The owner's right of ownership (specifically, the right to use and benefit from the property) was infringed by the defendant's possession.
  2. Intent or Negligence of the Defendant: The defendant possessed the property intentionally or negligently without a valid legal right against the owner. If the defendant is proven to have no valid right to possess, negligence is often inferred.
  3. Occurrence and Amount of Damage: The owner suffered damages, typically calculated as the fair rental value of the property for the period of unlawful occupation.
  4. Causation: A causal link between the defendant's unlawful possession and the owner's damages.

Possession by the defendant throughout the claimed damages period can be presumed under Article 186(2) of the Civil Code if the plaintiff proves the defendant's possession at both the beginning and the end of that period.

VI. Conclusion: Key Considerations for Owners (結論：所有者のための主要な考慮事項)

Successfully evicting an occupant and recovering real estate in Japan based on ownership rights requires a clear, systematic presentation of essential facts. The plaintiff owner must unequivocally establish their current ownership and the defendant's current possession. While the burden of proving a legitimate right to possess then shifts to the occupant, owners must be prepared to counter various defenses, including challenges to their title or claims of valid possessory rights. For claims involving building removal, additional specific facts regarding the building's ownership and its presence on the land are necessary. Understanding these evidentiary burdens and litigation dynamics is crucial for property owners seeking to enforce their rights effectively.