If a borrower defaults on the mortgage, can he argue that adverse
possession prevents the mortgagee from subsequently claiming
possession of the land?
|
|
The litigants in J A Pye (Oxford) Ltd and J A Pye
(Oxford) Land Ltd v UK have finally battled their way
through all available appeals processes. By way of
light relief to their saga, there has also been
Beaulane Properties Ltd v Palmer to consider.
|
If a neighbour or builder makes a permanent encroachment on one’s
land, then damages will have to be paid for that permanent trespass. Typically, this will involve the court assessing damages by reference to
a sum that would have been arrived at in hypothetical negotiations
between the two sides (with each making use of their respective
bargaining positions, but not holding out for unreasonable amounts).
|
|
We finally have some certainty as to the law on adverse possession.
Prior to this, we were in a period of uncertainty because of three different
developments:
|
 Andrew Francis considers the decision of the Grand Chamber
of the European Court of Human Rights, handed down at the
end of August, in JA Pye v United Kingdom.
|
|
We now have absolute finality on whether it is still possible to claim
adverse possession against unregistered land where the 12-year period
expired before October 2003. The ECHR has held that it is possible, and
that old UK law (based on LA 1980 and LRA 1925) is not in breach of
human rights.
|
|
In McPhail [1973] the CA made it clear that a possession order against
a squatter must be an immediate order – the court has no discretion to
suspend possession. Normal equitable principles (which might allow
suspension of the possession) do not apply because equity will not
assist a wrongdoer.
|
|
The Private Security Industry Act 2001 (in force since May 2005)
requires wheel-clampers to be licensed by the Securities Industries
Association. This applies to all wheel-clampers – not just the large
commercial organisations. Accordingly, a private property owner who
decides to do his own clamping or immobilising will need a licence.
|
|
When the Human Rights Act 1998 was passed, very few commentators
would have predicted that it would result in the virtual abolition of
adverse possession. But, that is largely the outcome of the ECJ decision
in Pye v UK, which confirms the approach taken by the High Court in
Beaulane [2005].
|
|
Very few would have predicted that Human Rights Act 1998 would result
in the virtual abolition of adverse possession. But, that is largely the final
outcome of the ECJ decision in Pye v UK, which confirms the approach
taken by the High Court in Beaulane [2005].
|
 Alison Hardy examines the outcome of the ECHR’s decision in Pye v Graham, which will mean an end to most claims for adverse possession of registered land
|
|
2005 has seen major developments in the law on adverse possession. Adverse possession allows a person who occupies land for long enough to claim legal ownership of that land. In J A Pye (Oxford) Limited -v- Graham, the House of Lords stated that to succeed, a person must establish possession of the land for the requisite period (at that time normally 12 years) together with an intention to possess. No distinction was made between registered and unregistered land.
|
 Laurie Heller reviews the impact of human rights legislation on domestic laws such as adverse possession.
|
|
We are still awaiting a definitive answer from the ECJ, but the general
consensus among commentators is that the concept of adverse possession
will shortly be consigned to the legal dustbin.
|
|
|
