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Adverse Possession: The Impact of Human Rights |
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The Human Rights Act 1998 has been recently criticised for protecting the position of illegal occupiers of land. In a landmark decision, however, the High Court in Beaulane Properties Limited -v- Palmer has used the Act to strengthen the rights of landowners.
Facts
Mr Palmer occupied registered land close to Heathrow Airport. He used the land to graze his and others' horses, for a continuous period of 12 years. Until 2003, the owners, including Beaulane Properties Limited, were content to allow Mr Palmer to remain in possession of the land. However, in 2003, Mr Palmer applied to the Land Registry to be registered with possessory title. This prompted Beaulane to commence proceedings.
The Decision
Although the High Court accepted that Mr Palmer had occupied the land for the necessary 12-year period, it upheld the stance taken by Beaulane. The provisions on which Mr Palmer relied on to acquire possessory title by adverse possession breached Article 1 to the First Protocol to the European Convention on human rights. This states that no one is to be deprived of their possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
In his judgement, Deputy Judge N Strauss QC stated that the legislation which led to a registered proprietor inadvertently losing his title without proper compensation did not comply with Article 1. Section 3 of the Human Rights Act 1998 (which came into force on 2 October 2000) provides that, so far as it is possible to do so, legislation "must be read and given effect in a way which is compatible with the Convention rights".
The approach taken in this case is most ingenious. After a thorough review of the development of the law of adverse possession, the Judge concluded that matters went awry from 1980 onwards and culminated in J. A. Pye (Oxford) Limited -v- Graham. According to Pye an occupier needed only to prove factual possession and an intention to possess and as a result it became far easier for landowners to lose their title inadvertently through no fault of their own.
Instead, the Judge decided that the occupier must prove that his occupation was "adverse" and the 12 year period did not start until the occupation was"inconsistent with the use or intended use" of the land by the landowner. Beaulane had no immediate plans for the land and was content to allow Mr Palmer to remain on the land. Therefore, Mr Palmer was unable to show that his use was inconsistent and his claim failed.
Comment
- This case only affects registered land. Occupiers of unregistered titles can still apply for possessory title by proving 12 years occupation and satisfying the requirements of the Land Registration Act 2002.
- Because the Human Rights Act 1998 is not retrospective, where the occupier of registered land can prove 12 years occupation prior to 2 October 2000, Beaulane does not affect what he has to prove and he can rely on Pye -v- Graham.
- Where occupier relies on occupation between 2 October 2000 and 13 October 2003, the Land Registry has issued a practice note that it will require evidence that the occupation is inconsistent with the use or intended use by the landowner.
- If the occupier cannot prove 12 years prior to 13 October 2003, then the new more onerous provisions of the Land Registration Act 2002 will apply.
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May 2005 |
