Seminar notes 7th June 2006
Sub Section |
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| Adverse Possession | |
| NB The decision in J A Pye (Oxford) Limited v Graham [2002] UKHL 30 referred to below has now been reversed - see the judgment given on 30 August 2007 by the European Court of Human Rights, sitting as a Grand Chamber in J.A. Pye (Oxford) Ltd and J.A. Pye (Oxford) Land Ltd v. the United Kingdom Application no. 44302/02. | |||||
| It follows that the notes set out below should be read subject to this subsequent decision. | |||||
| Adverse Possession - Generally | |||||
| What is it? | |||||
| • | Adverse possession is the extinguishing of the title to land of the ‘paper owner’ and the conferment of title to a trespasser. | ||||
| • | Adverse possession arises as a result of the Limitation Act 1980, which provides by sections 15, 17 and schedule 1:- | ||||
| “15 (1) No action shall be brought by any person to recover any land after the expiration of twelve years from the date on which the right of action accrued to him, or if it first accrued to some person through whom he claims, to that person | |||||
| (6) Part I of Schedule 1 to this Act contains provisions for determining the date of accrual of rights of action to recover land in the cases there mentioned. | |||||
| ........... | |||||
| 17 (1) Subject to . . . at the expiration of the period prescribed by this Act for any person to bring an action to recover land the title of that person to the land shall be extinguished | |||||
| .......... | |||||
| Schedule 1 | |||||
| 1. Where the person bringing an action to recover land, or some person through whom he claims, has been in possession of the land, and has while entitled to the land been dispossessed or discontinued his possession, the right of action shall be treated as having accrued on the date of the dispossession or discontinuance.” | |||||
| • | Section 38 of the Limitation Act 1980 does not include incorporeal hereditaments and so the Act does not apply to actions to establish or prevent interference with easements, nor does it operate to extinguish easements or restrictive covenants. | ||||
| • | A right of action is deemed to accrue at the date when a person in possession is dispossessed by a person (a trespasser) in whose favour the period of limitation can run – THE POSSESSION OF SUCH A PERSON IS CALLED “ADVERSE POSSESSION”. | ||||
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| The criteria | |||||
| • | To establish adverse possession it is necessary to show:- | ||||
(1) |
that the paper owner has been dispossessed (i.e. driven out of possession) or has discontinued possession (the owner has abandoned possession), and | ||||
(2) |
adverse possession has been taken by some other person for at least 12 continuous years; that is:- | ||||
i. |
the adverse possessor must have actual factual possession – exclusive physical control, and | ||||
ii. |
the adverse possessor must have had an intention to possess the land to the exclusion of all others including the owner of the paper title. The test for the intention required for adverse possession was set out in J A Pye (Oxford) Limited v Graham [2002] UKHL 30, [2003] 1 AC 419 at paragraph 43:- | ||||
| “This requirement of an intention to exclude the owner as well as everybody else has been repeated in subsequent cases. In Powell's case 38 P & CR 452, 471 Slade J found difficulty in understanding what was meant by this dictum since a squatter will normally know that until the full time has run, the paper owner can recover the land from him. Slade J reformulated the requirement (to my mind correctly) as requiring an "intention, in one's own name and on one's own behalf, to exclude the world at large, including the owner with the paper title if he be not himself the possessor, so far as is reasonably practicable and so far as the processes of the law will allow." (my emphasis) | |||||
| An adverse possessor MUST have an intention to exclude the whole world. | |||||
| • | Once a right of action is barred, the owner’s title:- | ||||
• |
is extinguished in unregistered land. | ||||
• |
In registered land (prior to 12 October 2003) is held on trust for the adverse possessor* | ||||
| *note: Section 75 of the LRA 1925 and paragraph 18(1) of Schedule 12 to the Land Registration Act 2002. | |||||
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| Recent Developments - on intention | |||||
| Is the intention to possess satisfied if the adverse possessor wrongly believes that he is occupying with the consent of the owner? | |||||
| • | There are two apparently contradictory recent decisions | ||||
| • | Clowes Developments (UK) Limited v Walters [2005] EWHC 669 (Ch) at [40] per Hart J | ||||
| "A person who is in factual possession and who intends to remain in possession (and to use that factual possession for his own benefit) so long as the true owner continues to permit him to do so does not have the necessary intention to possess for the purpose of starting a period of limitation running in his favour"* | |||||
| *note: Similar approach followed by Laddie J in Trustees of the Michael Batt Charitable Trust v Adams (2001) 82 P&CR 406. | |||||
| Facts | |||||
| In Clowes, company A granted a woman a licence to occupy a house and land without payment. She moved out, but her daughter and her daughter's husband remained in occupation. The company then sold the land to company B. No new licence was granted by company B. Hart J held that the sale automatically determined the licence. However, as the daughter and her husband thought that they were in occupation with the permission of the owner, they did not have the intention to possess. | |||||
| • | Wretham v Ross [2005] EWHC 1259 (Ch) [41] per David Richards J | ||||
| "An erroneous belief by the occupier that he has the consent of the owner does not mean that he is not in possession of the property" * | |||||
| *note: Applied in Ho Hang Wan v Ma Ting Cheung (1990) 1 HKLR 649, and the same approach followed in Hamson v Jones (1989) 52 DLR (4th) 143. | |||||
| Facts | |||||
| In Wretham, the owner of some sheds granted permission to his neighbour to use them. That licence terminated automatically when the owner died, and no new licence was granted by his successors in title. The neighbour carried on using the sheds. David Richards J held that the termination of the licence on the owner's death made the neighbour's possession unlawful and so adverse. | |||||
| Rationale | |||||
| • | The answer to this apparent conflict in decisions may be reconciled on the basis of the nature of the permission. | ||||
• |
If the permission is simply to use the property, but NOT to the exclusion of the owner, then the licensee will never have the intention to exclude the owner, and should consequently not be treated as having the necessary intention to possess. | ||||
• |
If the permission is for the exclusive use of the property – then the licensee does intend to exclude the owner and if the licence is terminated, he has the intention to possess sufficient to enable time to run in his favour. | ||||
| Is the intention to possess satisfied if the enclosure is to keep animals in rather than people out? | |||||
| • | There are two apparently contradictory recent decisions | ||||
• |
London Borough of Hounslow v Minchinton (1997) 74 P&CR 221, CA [1997] EWCA Civ 1277 | ||||
| In London Borough of Hounslow v Minchinton, the squatters used the disputed strip as part of their garden. They enclosed the strip so as to keep their dogs in the garden. It was argued that this showed that the enclosure was to keep the dogs in rather than to keep other persons out. Millett LJ rejected that argument, saying: | |||||
| "Their motive is irrelevant. The important thing is that they were intending to allow their dogs to make full use of what they plainly regarded as their land, and which they used as their land" | |||||
• |
Inglewood v Baker [2002] EWCA Civ 1733 | ||||
| In Inglewood v Baker, a squatter claimed he had been in adverse possession of a triangular parcel of woodland. The squatter had erected a fence in 1984. The Court of Appeal held that the fence had been erected to keep sheep in, not to keep the true owner out i.e. that motive was relevant. Therefore, neither the subjective nor the objective elements of the animus possidendi had been made out. However, Minchinton was not referred to. | |||||
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| Rationale | |||||
| • | The approach of the Court of Appeal to the relevance of motive in those two decisions is not easy to reconcile. | ||||
| • | The cases can perhaps be reconciled on the basis of the nature of the enclosure:- | ||||
• |
§ In Minchinton*, the intention to possess was manifested by the visible incorporation of the disputed land into the squatters' garden. The erection of the fence was part of that incorporation, and the fact it was done to keep dogs in was irrelevant. | ||||
| *note: In Minchinton, the disputed land was a strip of rough land about 3 feet wide at the bottom of the squatter's garden. The original owner of the strip and adjoining land had developed the land to the west of the strip, planted a hedge on the strip to screen the new development, and erected a fence on the east side of the hedge (the side nearest to the development). This cut the strip off from the rest of the owner's land, so that there was no access to the strip from the owner's land. The owner then conveyed the strip to the council. The strip was treated throughout the limitation period as part of the squatters' garden. The strip had been enclosed on the north and south sides, originally by an elderberry tree on one side and a corrugated iron fence on the other, and later by new fences, to prevent the squatters' dogs from escaping from the garden. So physically, the disputed land appeared to simply form part of the squatters' garden, due to a mislocated boundary line. The Court of Appeal held that the squatters were in possession. The acts of possession relied on by the squatters were described by Millett LJ as "not substantial" They consisted of trimming the hedge from time to time, weeding, looking after the elderberry bushes, and keeping a compost heap. However, they sufficed to put the squatters in possession because: "... that was the only sensible use of the land. It was rough land at the end of a garden". | |||||
• |
In Inglewood*, however, the only act of importance relied on as manifesting the intention to possess was the erection of the fence itself, so that the motive was important in assessing whether the fence did, in reality, manifest an intention to keep the owner out, or only to keep animals in. | ||||
| *note: In Inglewood v Baker however, the disputed land was a triangle of woodland adjacent to grazing land belonging to the squatter. It looked different to the squatter's adjoining land. The only use made of it was for feeding sheep from feeders, and minor use for dumping rubbish, shooting, playing by children and motorbike riding. | |||||
• |
If the cases cannot be reconciled, then perhaps Minchinton is to be preferred. What matters is the manifested intention, in one's own name and on one's own behalf, to exercise exclusive control of the disputed land. The fact that the intention to make exclusive use of the land is formed because of a desire to keep animals in does not affect the nature or quality of the intention. It explains the reason that the intention was formed, but does not in any way detract from the existence of the intention. | ||||
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| Adverse Possession – The LRA 2002 | |||||
| Land Registration Act 2002 Chapter 9 | |||||
| Principle | |||||
| • | The basis of title will be registration not possession - TITLE BY REGISTRATION | ||||
| Dis-application of periods of limitation | |||||
| • | Section 96 of the LRA 2002 provides that, in relation to a registered estate in land or a registered rentcharge, no period of limitation runs in relation to: | ||||
| • | actions for the recovery of land except in favour of a chargee, or | ||||
| • | actions for redemption | ||||
| and so the title to such an estate or rentcharge cannot be extinguished. | |||||
| • | The exception in favour of chargees means that section 15 of the Limitation Act 1980 will continue to apply to an action by a chargee for possession or foreclosure, to enforce its security. | ||||
| LRA 2002 Scheme | |||||
| • | Adverse possession of itself, for however long, will not suffice for it will not bar the owner's title to a registered estate in land or a registered rentcharge. | ||||
• |
After ten years adverse possession, an adverse possessor will be entitled to apply* (a paragraph 1 application) to be registered as proprietor** | ||||
| *note: The application must be accompanied by a statutory declaration containing the information required by LRR 2003, rule 188 | |||||
• |
An evicted adverse possessor with ten years prior adverse possession may apply to be registered as proprietor unless evicted under a judgment** | ||||
| **note: Unless he is a defendant to proceedings for possession or a judgment for possession has been made against him in the previous two years. | |||||
| • | The registered proprietor, any registered chargee, the proprietor of any superior registered estate and any other person registered as a person entitled to be notified will be served by HMLR with notice of the application. | ||||
• |
The LR notice informs the recipient that he has 65 business days to serve a counter-notice and that, if no counter-notice is served, the registrar MUST enter the applicant as the new registered proprietor. | ||||
• |
As the notice will be sent to the address on the register, it is vital that landowners notify HMLR of changes in address. | ||||
| • | If no counter notice is served by any of those notified, the adverse possessor will be registered as proprietor of the estate, and he takes subject to all interests affecting the estate except a registered charge. | ||||
| • | If any of those notified oppose the application it will be rejected, unless the adverse possessor can bring him or herself within one or more of three conditions - THE DEFENCES. | ||||
• |
It would be unconscionable because of an equity by estoppel for the registered proprietor to seek to dispossess the applicant, and the circumstances are such that the applicant ought to be registered as the proprietor | ||||
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The applicant is entitled to be registered as proprietor for some other reason* | ||||
| *note: e.g. unpaid vendor or is entitled to the land under a will. | |||||
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The disputed land neighbours the applicant's land, there has been no determination of the boundary between the two, the applicant has been in adverse possession for ten years reasonably believing the land belongs to him and the disputed land was registered more than a year prior to the application. | ||||
| • | If the adverse possessor's application for registration is refused but the adverse possessor remains in adverse possession for a further two years, he will be entitled to apply* (a paragraph 6 application) once again to be registered and will this time be registered as proprietor whether or not the registered proprietor objects. The two year possession opportunity. | ||||
| *note: Unless (i) he is a defendant to possession proceedings started within 2 years of the rejection, (ii) judgment for possession has been given against him in the previous 2 years; (iii) he has been evicted pursuant to a judgment; (iv) the registered proprietor is under a disability. | |||||
• |
To protect his position a proprietor who has fended off a paragraph 1 application MUST within the 2 year period | ||||
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Sue for possession (and prosecute those proceedings to possession before the expiry of the two year period) | ||||
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End the adverse nature of the possession by legitimating it (licence or lease) | ||||
| Points to note: | |||||
| • | Where the registered proprietor brings proceedings to recover possession from an adverse possessor, the LRA 2002 allows the adverse possessor to establish certain limited defences, which are consistent with the three conditions, mentioned above. | ||||
| • | Where a proprietor or chargee has obtained a judgment for possession of land against an adverse possessor and: | ||||
• |
when the proceedings in which the judgment was given were commenced, the adverse possessor was entitled to apply for registration by reason of being in adverse possession for ten years; or | ||||
• |
two years after the judgment, the adverse possessor is entitled to re-apply for registration by reason of being in adverse possession for two years since rejection of his application to be registered as a ten year adverse possessor (a paragraph 6 application); | ||||
| then the judgment ceases to be enforceable against the adverse possessor two years after the judgment (rather than, as is usual, six years). If in either of these cases the proprietor or chargee were to bring fresh proceedings, the adverse possessor would have a defence and the court would be required to order the registrar to register the adverse possessor as proprietor of the land. | |||||
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| Transitional provisions LRA - Adverse Possession | |||||
| General Rule | |||||
| • | The LRA 2002 adopts a double strategy. | ||||
| • | An acquired right to possessory title before the coming into force of the Act is preserved. | ||||
| • | The trust in favour of the person entitled to be registered as a possessory proprietor is abolished. The trust is abolished by the repeal without replication of section 75 of the 1925 Act. Instead, the LRA 2002 confers on the adverse possessor who is a beneficiary under a trust under section 75 immediately before it comes into force an entitlement to be registered* | ||||
| *note: That entitlement will be a proprietary right. As such, as long as the adverse possessor is in actual occupation the priority of his right will be protected in relation to registered dispositions. | |||||
| • | Although the right to be registered will be an overriding interest if the adverse possessor is in actual occupation, an adverse possessor's rights will, for a period of three years beginning on the day on which the adverse possessor is entitled to be registered under the LRA, be protected even if he or she is not in actual occupation where: | ||||
• |
in respect of first registration, the adverse possessor has acquired a right under the Limitation Act 1980 before the coming into force of the new overriding interests in Schedule 1 of the LRA 2002 | ||||
• |
in respect of a registered disposition, the adverse possessor was immediately before the coming into force of Section 96 entitled to be registered as the proprietor of an estate under section 75 of the LRA 1925. | ||||
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| ADVERSE POSSESSION AND HUMAN RIGHTS | |||||
| Why are Human Rights important? | |||||
| • | The bare facts of the Pye litigation | ||||
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Estimated the value of the land lost at £10 million (Pye’s valuation) | ||||
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The litigation costs incurred by Pye were £575,000 and they paid the Grahams their costs of £424,000. | ||||
| • | It affects registered Land | ||||
| • | There is a likely impact on unregistered land | ||||
| The Effect of Pye v United Kingdom and Beaulane Properties Ltd v Palmer | |||||
| • | There are now arguably five categories of adverse possession | ||||
• |
Unregistered land limitation period expired before 1 October 2000* | ||||
| *note: The coming into force of the Human Rights Act 1998 | |||||
• |
Unregistered land limitation period expired after 1 October 2000 | ||||
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Registered land where the limitation period expired before 1 October 2000 | ||||
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Registered land where the limitation period expired before 13 October 2003** | ||||
| **note: The coming into force of the of the Land Registration Act 2002 | |||||
• |
Registered land where the limitation period expired after 13 October 2003 | ||||
| Beaulane Properties Limited v. Palmer [2005] EWHC 817 (Ch) | |||||
| The Facts: | |||||
| • | Mr Palmer had been grazing horses in a field (green belt land near to Heathrow Airport) for many years, initially under licence. The licence expired in 1986. The Judge held that time started to run against Beaulane Properties Limited in June 1991 and had expired in June 2003, after the commencement of the Human Rights Act 1998 (“HRA”) but before the commencement of the Land Registration Act 2002 (“LRA 2002”). The question of the impact of the HRA on the interpretation and application of the meaning and application of the Limitation Act 1980 (“LA 1980”) was therefore squarely raised. | ||||
| The Decision: | |||||
| Nicholas Strauss QC (sitting as a deputy judge of the High Court) held: | |||||
• |
That Article 1 of the First Protocol was "engaged" because the practical effect of section 75 of the LRA 1925, and section 17 of the LA 1980, was to deprive the owner of his land. | ||||
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That a system of law under which the owner could be deprived of his land without compensation as a result of mere inadvertence was disproportionate interference, which could not be justified by reference to any public interest. | ||||
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That the loss of Beaulane's land was therefore incompatible with Article 1. | ||||
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That the effect of section 3 of the HRA was to require the statutes to be read and given effect to in a way, which was compatible with Article 1. | ||||
• |
That the statutes were to be read as applying only to those cases in which the trespasser established "possession" in accordance with the case law in 1925; but since the use of the land by Mr Palmer had not been inconsistent with the intentions of Beaulane for it, his possession had not been adverse (applying Leigh v. Jack (1879) 5 Ex. Div. 264). | ||||
• |
Alternatively, it might be possible to reinterpret the Acts as not precluding the owner from suing in trespass for damages for (a) 12 years' occupation and (b) the loss of his land.* | ||||
| *note: See paragraph 222 of the judgment in Beaulane. | |||||
| Consequences of Beaulane | |||||
| • | HMLR has issued a practice note requiring any applicant claiming possessory title based on adverse possession founded on 12 years adverse possession ending in the period between 1 October 2000 to 13 October 2003, to show an arguable case for the possession being inconsistent with the use or intended use of the land by the registered proprietor, and not simply that the possession was without the consent of the registered proprietor. | ||||
| Is the approach of Nicholas Strauss QC correct? | |||||
| • | Only applies to adverse possession accruing between 1 October 2000 and 13 October 2003. | ||||
| • | Accepting that there is incompatibility the decision is simply perverse | ||||
| • | "adverse possession" has been re-interpreted so as to revive Bramwell LJ’s approach in Leigh v. Jack which | ||||
a) |
has been said by the HL to have been "wrong and heretical" | ||||
| *note: Per Lord Browne-Wilkinson at paragraph 45 in J A Pye (Oxford) Limited v Graham [2002] UKHL 30 [2003] 1 AC 419 | |||||
| and | |||||
b) |
has been reversed by statute, so as to revive the pre-1833 law as to "adverseness", which the 1833 Act was designed to simplify.** | ||||
| **note: Paragraph 8(4) of Schedule 1 to the Limitation Act 1980 | |||||
| It follows that Leigh v Jack did not represent the law in 1925. | |||||
| • | This approach will lead to "adverse possession" having a different meaning under the LRA 2002 (which is not incompatible with Article 1) from that in cases of registered land where the limitation period expired between 1 October 2000 and 13 October 2003. | ||||
• |
If correct may affect adverse possession for the purposes of the LRA 2002 for the concept of adverse possession under the LRA 2002 is that of the common law. | ||||
| • | This approach only protects the human rights of landowners who have future plans for the property with which the squatter's use is not inconsistent. But what if: | ||||
a) |
The squatter's use is inconsistent with those future plans; or | ||||
b) |
The owner has no future plans; or | ||||
c) |
The squatter does not know of the owner's plans. | ||||
| In those cases, the Beaulane approach does not resolve the incompatibility. | |||||
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| The Pye litigation | |||||
| The Facts: | |||||
| • | Mr Graham had enjoyed a series of grazing licences of 58 acres in Berkshire, which adjoined his own farm. The land had development potential. When the last licence expired at the end of 1983, he asked for a renewal but it was at first refused. He continued to use the land and was permitted to take a cut of hay in 1984. He then asked for further renewals; his letters were not answered but he continued to farm the land. In June 1997, he registered cautions. In January 1999, the owner brought proceedings for possession. | ||||
| Note that in Pye, time had started to run in September 1984 and so the limitation period expired in September 1996. | |||||
| The Decisions: | |||||
| 1st Instance - Neuberger J J.A. Pye (Oxford) Ltd. & another v Caroline Graham & another [2000] Ch. 676 |
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• |
Neuberger J held that Mr Graham had been in adverse possession since September 1984. | ||||
• |
At the end of his judgment Neuberger J stated that the result he had reached did not accord with justice and could not be justified by practical considerations | ||||
| The Court of Appeal J.A. Pye (Oxford) Ltd. & another v Caroline Graham & another [2001] EWCA Civ 117 [2001] Ch 804 |
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| • | The Court of Appeal held that Mr Graham had not shown the necessary intention to possess. | ||||
| • | The Court of Appeal rejected the argument that the Human Rights Act applied. | ||||
• |
Lord Justice Mummery held that Article 1 did not impinge on the relevant provisions of the LA 1980. The LA 1980 did not deprive a person of his possessions or interfere with his peaceful enjoyment of them but only deprived a person of his right of access to the courts for the purpose of recovering property if he had delayed the institution of his legal proceedings for 12 years or more after being dispossessed by another. The extinction of the applicants’ title was not, in his view, a deprivation of possessions nor a confiscatory measure for which payment of compensation would be appropriate, but simply a logical and pragmatic consequence of the barring of the right to bring an action after the expiration of the limitation period. | ||||
• |
Mummery L.J found that any deprivation was justified in the public interest, the conditions laid down in the LA 1980 being reasonably required to avoid the risk of injustice in the adjudication of stale claims and as ensuring certainty of title: those conditions were not disproportionate, the period of 12 years being reasonable and not imposing an excessively difficult burden on the landowner. | ||||
• |
Lord Justice Keene took as his starting point that limitation periods were in principle not incompatible with the Convention and that the process whereby a person would be barred from enforcing rights by the passage of time was clearly acknowledged by the Convention. Even though limitation periods both limited the right of access to the courts and in some circumstances had the effect of depriving persons of property rights, whether real or personal, or of damages: there was thus nothing inherently incompatible as between the LA 1980 and Article 1 of the Protocol. | ||||
| The House of Lords J.A. Pye (Oxford) Ltd. and Others v Graham and Another [2002] UKHL 30 [2003] 1 AC 419 |
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| • | The House of Lords held: | ||||
• |
To establish factual possession the squatter has to show the absence of the paper owner's consent and such acts as demonstrated that he had dealt with the land as any occupying owner of that kind of land might normally be expected to do and that no other person had done so. | ||||
• |
That the requisite intention was not to acquire ownership but to possess and on one's own behalf to exclude the world at large, including the paper owner, as far as was reasonably possible. | ||||
• |
That animus can normally be inferred from the acts of possession and is not disproved by evidence that the squatter would have paid or signed a licence, if asked. | ||||
• |
That the Human Rights Act did not act retrospectively*. | ||||
| *note: Paragraph 65 of the opinion of Lord Browne-Wilkinson. Pye conceded this point. | |||||
• |
In any event, Article 1 was not engaged. | ||||
| • | It is apparent from the judgments of Lord Bingham and Lord Hope that they regarded the existing regime as it applied to registered land as demonstrably unfair and as having produced an unjust result. Lord Hope saw the unfairness not in the absence of compensation, but in the absence of safeguards to protect against oversight or inadvertence. | ||||
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| The European Court of Human Rights J.A. Pye (Oxford) Ltd v The United Kingdom (Application number 44302/02) |
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| • | Having lost in HL, Mr Pye applied to the European Court of Human Rights alleging that the UK law violated Article 1 of the First Protocol. | ||||
• |
Please note that this was not an appeal of the decision the House of Lords in Pye v Graham | ||||
| • | Article 1 of Protocol Number 1 of the Convention reads as follows:- | ||||
| “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. | |||||
| The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.” | |||||
| • | On 15 November 2005 the ECHR held by four to three: | ||||
| The majority opinion (the British, Finnish, Slovakian and Moldovan judges) | |||||
• |
The effect of the LRA 1925 and LA 1980 was to deprive Pye of its beneficial interest and so the Article was engaged (The Acts were not concerned with the ‘control of use’). | ||||
• |
In the absence of any provision for compensation, the provisions imposed on Pye an excessive burden and upset the fair balance between the demands of the public interest and Pye's right to the undisturbed enjoyment of their possessions and that there were no exceptional circumstances to justify such imbalance. | ||||
• |
The assessment of compensation was reserved. | ||||
| The dissenting opinion | |||||
• |
The dissenting judgment took the view that the deprivation of possessions was compatible with Article 1 of Protocol Number 1, even in the absence of compensation. The minority opinion was that Pye had lost its land because of its own neglect* They stressed: | ||||
| • | that Pye had access to professional advice. | ||||
| • | the operation of the legislation on limitation was foreseeable | ||||
| • | Pye could easily have stopped time running - by granting a licence or suing for possession | ||||
| *note: “Possession (ownership) carries not only rights but also and always some duties. The purpose of the relevant legislation was to behove a landowner to be vigilant to protect the possession and not to ‘sleep on his or her rights’” (see paragraph 2 of the dissenting opinion) | |||||
| • | that the majority had appeared to be swayed by the new provisions of the LRA 2002 rather than trying to assess what the position would have been if the LRA 2002 had not been enacted. | ||||
• |
The flaw/difficulty with the dissenting view is that Pye had simply not realised that time was running. | ||||
| • | The basis of the majority opinion | ||||
• |
The majority took the view that the inadvertence of Pye would have had no effect but for the LA 1980 and the LRA 1925 and as a consequence there was deprivation. | ||||
• |
The decision was based on the concept of absolute ownership (as advocated by the LRA 2002) rather than the concept of relative ownership (the basis of the judgment of the House of Lords in Pye v Graham) | ||||
| 24 April 2006 – referral to the Grand Chamber accepted | |||||
| • | Under Article 43 of the European Convention on Human Rights, within three months from the date of a Chamber judgment, any party to the case may, in exceptional cases, request that the case be referred to the 17-member Grand Chamber of the Court. In that event, a panel of five judges considers whether the case raises a serious question affecting the interpretation or application of the Convention or its protocols, or a serious issue of general importance, in which case the Grand Chamber will deliver a final judgment. If no such question or issue arises, the panel will reject the request, at which point the judgment becomes final. Otherwise Chamber judgments become final on the expiry of the three-month period or earlier if the parties declare that they do not intend to make a request to refer. | ||||
| Consequences if Pye is upheld by the Grand Chamber | |||||
| • | The UK government has to decide whether it will take any steps to make the law of adverse possession compatible. | ||||
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| Analysis of Pye v UK | |||||
| • | It appears to follow the reasoning of Beaulane on incompatibility (no observations were made on the approach to resolve that incompatibility by Nicholas Strauss QC.) | ||||
| • | Article 1 comprises three distinct (but connected) rules. | ||||
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The principle of peaceful enjoyment of property. | ||||
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That there can only be deprivation of property if it is in the public interest and subject to certain conditions | ||||
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States can control the use of property | ||||
| • | The United Kingdom won the following arguments | ||||
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that the law of adverse possession did serve a public interest | ||||
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that alternative solutions do not render the legislation unjustified | ||||
| • | The 4:3 majority was decided however that interference must strike a fair balance between the demands of the public or general interest of the community and the requirements of the protection of the individual’s fundamental rights. It was on this narrow ground that the UK lost. What was unfair was the absence of compensation where there was no adequate procedural protection*. | ||||
| *note: Paragraph 73 of the majority opinion. | |||||
| Effect of Pye on registered land | |||||
| • | It will affect all claims for adverse possession in respect of registered land between 1 October 2000 and 13 October 2003. | ||||
| • | It is unlikely to lead to the re-opening of earlier determined claims or claims for compensation against the UK for there is a six month time limit within which applications should normally be made to the ECHR and a one year limitation period in domestic law* | ||||
| *note: Section 7(5) of the HRA 1998 | |||||
| • | It may affect claims post 13 October 2003 on the basis that: | ||||
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the three Defences still involve the deprivation of property without compensation, or | ||||
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because a counter notice is not served because a notice was not received due to inadvertence. | ||||
| Effect of Pye on unregistered land | |||||
| • | There are two opposing views | ||||
| Has no effect on unregistered land | |||||
| • | In Beaulane the judge stressed that there was a clear distinction between registered and unregistered land. In unregistered land, ownership is based on possession. In registered land, there is no difficulty in determining ownership, as the owner is the registered proprietor. | ||||
| • | The ECHR cited, apparently with approval, the paragraph from the Law Commission report that led to the LRA 2002, which stated that the justification for adverse possession ‘has much greater force in relation to unregistered land than it does for land with registered title’*. | ||||
| *note: See paragraph 27 of the majority judgment of the ECHR | |||||
| • | It is to be noted that unregistered land is based on the concept of possession. | ||||
| Has an effect on unregistered land | |||||
| • | There is no reason why paper unregistered title is less certain than registered title. | ||||
| • | If provable unregistered title is certain, then the paper owner’s deprivation is the same as that in registered land. | ||||
| • | If Pye impacts on unregistered land then:- | ||||
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where a paper owner’s title is potentially extinguished by adverse possession after 1 October 2000, then the law on adverse possession will have to be construed to make it compatible with Article 1 of Protocol Number 1 – this will probably require someone to go to the ECHR. | ||||
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