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.
Add in
the introduction of a new procedure under the Land
Registration Act 2002, and it becomes clear that the
law of adverse possession has had a period of
intensive examination and overhaul in the past few
years. Now the dust has settled, it is possible to
undertake a brief survey of where we are, to assess
the extent to which the law has changed.
PYE IN THE DOMESTIC COURTS
The headline-grabbing issue in Pye was whether the
Human Rights Act 1998 (HRA 1998) operated so as
to nullify or modify the old adverse possession
procedure in relation to registered land, under
the Limitation Act 1980 and the Land Registration
Act 1925. To do so it would need to have
retrospective effect, and the Court of Appeal
concluded that it did not.
The other aspect of the dispute concerned the
meaning of ‘adverse’, in other words the nature
of the possession required to deprive the paper
owner of the property. In the House of Lords an
orthodox version of the law prevailed so that
ultimately the outcome of the domestic litigation
was entirely conventional:
a) the HRA 1998 did not retrospectively affect the
old adverse possession procedure; and
b) the claimants established adverse possession.
PYE IN EUROPE
The defendant companies then challenged the law of
adverse possession in the European Court of Human
Rights. This could not affect the question of who was
entitled to the property under our domestic law, but
could have entitled them to compensation from the
government. They were initially successful, but after
an appeal to the Grand Chamber of the Court, the
final outcome was that the old adverse possession
procedure did not breach human rights.
WHERE ARE WE NOW?
The end result of this marathon is that the defendant
companies were entirely unsuccessful in their
challenge to the law. In the meantime, though, the
Beaulane case has changed the law in relation to
situations where the HRA 1998 does apply. Also, in
relation to registered land, a new procedure has been
introduced under the Land Registration Act 2002 (LRA
2002). Both of these developments will make it much
harder for adverse possession claims to succeed in
the future, at least in relation to registered land.
There are now four different sets of
circumstances that may apply, each with different
legal consequences.
First, where there is registered or unregistered land
that has 12 years’ adverse possession completed
before 2 October 2000 (Pye):
the HRA 1998 does not apply;
the law remains unaltered; and
in the light of Pye, challenges to the law as it
relates to unregistered land are unlikely.
Secondly, where there is registered land that has
12 years’ adverse possession, completed on
or after 2 October 2000 but before 13 October 2003
(Beaulane):
the HRA 1998 applies;
the new adverse possession regime under the
LRA 2002 does not apply; and
in accordance with the Beaulane decision, the
adverse possessor must show that its
possession was inconsistent with the use, or
intended use, of the land by the owner, and not
merely that it was without the owner’s consent
– the Land Registry has issued brief, additional
guidance to Practice Guide 5 confirming this
(www.landregistry.gov.uk/).
Thirdly, where there is unregistered land that has
12 years’ adverse possession completed on or after
2 October 2000:
the HRA 1998 applies;
in the light of Pye, challenges to the law are
unlikely; and
while both Pye and Beaulane were concerned
with registered land, a court might still apply
Beaulane in relation to unregistered land.
Finally, where there is registered land that has 12
years’ adverse possession that was not completed
before 13 October 2003:
The new adverse possession regime under the
LRA 2002 applies. It is not considered to be
vulnerable to a human rights-based challenge.
