How Do You Legally Reclaim Real Property from an Unlawful Occupant in Japan Based on Ownership?

The unauthorized occupation of real property is a significant concern for landowners worldwide. If you own real estate in Japan and find it occupied by someone without a valid right, Japanese law provides a mechanism to reclaim your property. This process, grounded in the rights of ownership, requires a clear understanding of specific factual allegations, or "Yokenjijitsu" (要件事実), that must be established in court. This article outlines the key legal principles and factual elements involved in a claim by an owner to evict an unlawful occupant and recover possession of their real property in Japan.

The Legal Basis: Right to Demand Return Based on Ownership (Shoyūken ni Motzuku Henkan Seikyūken)

The primary legal tool for an owner to recover property from someone possessing it without right is the "right to demand return based on ownership" (shoyūken ni motzuku henkan seikyūken - 所有権に基づく返還請求権). This is a type of "real rights claim" (bukken-teki seikyūken - 物権的請求権), which are powerful claims that stem directly from the nature of real rights (bukken - 物権) like ownership.

Ownership, being an absolute right to freely use, derive profit from, and dispose of the owned property, inherently includes the power to exclude others. When this right is infringed by an unauthorized occupation, the owner can demand the restoration of their full control. Japanese law generally categorizes real rights claims into three types:

1. Demand for Return (Henkan Seikyūken - 返還請求権): Used when the owner is deprived of possession of the property. This is the focus of our discussion.
2. Demand for Removal of Disturbance (Bōgai Haijo Seikyūken - 妨害排除請求権): Used when the owner's enjoyment of the property is being interfered with by means other than deprivation of possession (e.g., an unauthorized structure encroaching on the land).
3. Demand for Prevention of Disturbance (Bōgai Yobō Seikyūken - 妨害予防請求権): Used when there is an imminent threat of disturbance to the owner's rights.

The "Subject Matter of Litigation" (Soshōbutsu) in a Real Property Recovery Claim

In a lawsuit to reclaim real property based on ownership, the "subject matter of litigation" (soshōbutsu - 訴訟物) is typically defined as "the right to demand the delivery of [the specific real property] based on the plaintiff's ownership." This clearly frames the legal issue before the court.

Core Factual Allegations (Yokenjijitsu) for the Owner's Claim (Seikyū Gen'in)

To succeed in a claim for the return of real property, the plaintiff (owner) must allege and, if disputed, prove two fundamental Yokenjijitsu as their cause of action (seikyū gen'in - 請求原因):

1. Plaintiff's Current Ownership of the Real Property (Genkoku no Fudōsan Shoyū - 原告の不動産所有):
   The plaintiff must assert that they are the current owner of the specific piece of real property in question at the time the court makes its decision (typically, as of the conclusion of oral arguments).
   • Proving Ownership: Establishing ownership can be complex. It's rarely sufficient to merely declare ownership. The plaintiff must demonstrate the basis of their title. Common approaches include:
     • Tracing Title from a Former Undisputed Owner ("Moto Shoyū" - もと所有): This involves proving a chain of valid acquisitions (e.g., through purchase, inheritance, gift) starting from a point in the past where ownership by a particular person (the plaintiff or a predecessor) was clear, undisputed, or admitted by the defendant. For example, if the defendant admits to purchasing the property from the plaintiff on a specific date, the plaintiff's ownership up to that point of sale is established through the defendant's "admission of right" (kenri jibaku - 権利自白). The critical point in time for establishing this "former ownership" will depend on the specifics of the case and the defendant's counter-allegations.
     • Original Acquisition: In some cases, ownership might be based on original acquisition, such as completing the requirements for acquisitive prescription (though if this is the basis of title and it's not yet formally recognized or registered, it might form part of a different type of claim to first establish that title).
   • The Role of Real Estate Registration (登記 - tōki): In Japan, the real estate registration system serves primarily as a means for a rightful owner to assert their property rights against third parties (as a perfection requirement under Article 177 of the Civil Code). Unlike some land registration systems (e.g., Torrens systems), Japanese registration does not, in principle, have an absolute conclusive effect (kōshinryoku - 公信力) that guarantees title to the registered person if the registration does not reflect the true state of rights. This means a registration can be challenged if it doesn't align with the substantive ownership. However, a registered title is considered strong prima facie evidence of ownership in litigation and plays a crucial role in practice.
2. Defendant's Current Possession of the Real Property (Hikoku no Fudōsan Sen'yū - 被告の不動産占有):
   The plaintiff must allege that the defendant is currently in possession of the property. The prevailing view ("current possession theory" or gen sen'yū setsu - 現占有説) is that possession must exist at the time of the close of oral arguments in the fact-finding stage of litigation.
   • "Possession" (Sen'yū - 占有): This refers to actual physical control and dominion over the property. It can be direct possession (the defendant themselves is occupying it) or indirect possession (e.g., the defendant possesses it through a tenant to whom they unlawfully leased the property).
   • The plaintiff should specify the nature of the defendant's occupation (e.g., "residing in the house," "using the land as a commercial parking lot") to concretize the allegation of possession.

What the Plaintiff (Owner) Does Not Need to Allege or Prove Initially

A very important strategic aspect of Japanese law in this context is what the plaintiff is not required to establish as part of their initial case:

• The Lack of the Defendant's Right to Possess (占有権原の不存在 - sen'yū kengen no fusonzai):
  The plaintiff owner is generally not burdened with alleging or proving that the defendant has no legal right or "title of possession" (sen'yū kengen - 占有権原) to be on the property.
  If the defendant claims they have a legitimate right to possess the property (for example, under a lease agreement with the true owner, a superficies right, or some other contractual or real right), this assertion constitutes an affirmative defense (kōben - 抗弁). The burden of alleging and proving the facts that establish such a right to possess falls squarely on the defendant. This principle has been affirmed by the Supreme Court of Japan (e.g., judgment of March 1, 1960, which indicated that Article 188 of the Civil Code, regarding the presumption of a possessor's right, does not apply in a way that forces the owner to prove the non-existence of the possessor's right in such reivindicatory actions).
  This allocation of burdens simplifies the owner's initial task: prove your ownership and the defendant's possession. The onus then shifts to the defendant to justify their occupation.

Allocation of Burden of Pleading and Proof

To summarize the burdens:

• Plaintiff (Owner): Bears the shuchō sekinin (burden of pleading) and risshō sekinin (burden of proof) for their current ownership of the property and the defendant's current possession of it.
• Defendant (Occupant): If they wish to contest the claim, they bear the burden of pleading and proving any affirmative defenses, such as facts demonstrating they have a valid right to possess the property, or facts showing the plaintiff has lost ownership since the time their alleged "former ownership" was established.

Typical Defenses Raised by the Occupant (Defendant)

An occupant faced with an owner's claim for return of property might raise several types of defenses:

• Denial of Core Yokenjijitsu:
  • Denying the plaintiff's alleged ownership (e.g., claiming the plaintiff's title is invalid or that someone else is the true owner).
  • Denying their own possession of the property (though this might be difficult if their occupation is evident).
• Affirmative Defenses (Kōben):
  • Defense of Loss of Plaintiff's Ownership (Shoyūken Sōshitsu no Kōben - 所有権喪失の抗弁): Alleging that, even if the plaintiff once owned the property (at the "moto shoyū" point), they subsequently lost ownership through a later event (e.g., the defendant purchased the property from the plaintiff, or the plaintiff sold it to a third party who then granted rights to the defendant).
  • Defense of Rightful Possession (Sen'yū Kengen no Kōben - 占有権原の抗弁): This is the most common type of affirmative defense. The defendant alleges specific facts that give them a legal right to possess the property against the owner. Examples include:
    • A valid lease agreement (chintaishaku keiyaku - 賃貸借契約) with the plaintiff or a previous owner.
    • A loan for use agreement (shiyō taishaku keiyaku - 使用貸借契約).
    • A superficies right (chijōken - 地上権) or other real right granting possession.
    • Acquisitive prescription of a right to possess (though this is complex).

Practical Steps and Evidence for Property Owners

To successfully reclaim property, owners should meticulously prepare their case:

• Gathering Comprehensive Proof of Ownership:
  • Certified Copy of the Real Estate Register (登記簿謄本 - tōkibo tōhon or 登記事項証明書 - tōki jikō shōmeisho): This is the primary document showing registered title.
  • Contracts of Sale/Purchase: If ownership was acquired through purchase.
  • Inheritance Documents: Wills, certificates of inheritance, records of division of estate, if applicable.
  • Court Judgments: Any previous court decisions affirming title.
  • Fixed Asset Tax Receipts (固定資産税納税通知書 - kotei shisan zei nōzei tsūchisho): While not conclusive proof of ownership, payment of property taxes can be supporting evidence.
• Documenting the Defendant's Possession:
  • Photographs and Videos: Dated images/videos showing the defendant's occupation and its nature.
  • Witness Statements: Testimony from neighbors or others who can confirm the defendant's possession.
  • Utility Bills or Mail: If accessible and addressed to the defendant at the property, these can indicate occupation (though obtaining these might present challenges).
  • Official Reports: If any official bodies (e.g., police, local government) have noted the occupation.

A Brief Comparative Note

The Japanese approach to reclaiming property based on ownership, with its specific allocation of burdens regarding the defendant's right to possess, can be contrasted with common law actions like "ejectment" or "action to quiet title." In some common law systems, the plaintiff might need to show not only their superior title but also that the defendant's possession is "wrongful" as part of their prima facie case. The Japanese system, by placing the onus on the defendant to prove their sen'yū kengen once ownership and possession are established by the plaintiff, streamlines the initial requirements for the owner.

Conclusion

Legally reclaiming real property from an unlawful occupant in Japan through a claim based on ownership hinges on the plaintiff's ability to clearly allege and substantiate two core Yokenjijitsu: their current ownership of the property and the defendant's current possession of it. A significant feature of this process is that the owner generally does not need to proactively disprove any potential right the occupant might have; rather, the burden shifts to the occupant to justify their presence if they wish to resist the owner's claim. Thorough preparation, including gathering robust evidence of ownership and documenting the unlawful occupation, is critical for any property owner seeking to enforce their rights and regain possession in the Japanese legal system.