Adverse possession has long been regarded as an anachronism, and the reforms of LRA 2002 were designed to make it far more difficult for squatters to claim title in respect of registered land (although the full impact will not be felt until the transitional provisions end in October 2006). In the meantime, however, the Human Rights Act 1998 seems to be achieving what the Law Commission long wanted – namely the abolition of adverse possession.

Readers will no doubt be familiar with the case of Pye [2003] which involved Green Belt development land worth over £20m. The squatter had originally occupied under a grazing agreement but had refused to vacate many years earlier. The HL found in favour of the squatter by applying traditional adverse possession criteria (ie factual possession and an intention to possess). However, the landowner then argued that adverse possession amounted to an unlawful deprivation of property without compensation (and so was in breach of Article 1). That issue has since been referred to the ECJ, with an opinion expected in the next three months.

However, the High Court has now jumped the gun and found in favour of another landowner in a different case involving Green Belt land, by upholding the Article 1 argument. If this approach is correct – and it seems to be – then any adverse possession claim is now likely to be dead in the water because Article 1 outlaws the very concept of adverse possession.

There is one further point to note. HRA 1998 came into force in October 2000 and is generally accepted not to have been retrospective. In Pye [2003] the twelve-year period expired before that date and therefore it is possible that the ECJ will hold that Article 1 is inapplicable. However, in the High Court case the twelve-year period ended after October 2000 and thus HRA 1998 applied – and so Article 1 thwarted the adverse possession claim. But, subject to that caveat as to the commencement date of HRA 1998, the position now seems to be that adverse possession is incompatible with Article 1.

As a final point, Article 1 outlaws deprivation of property without compensation; accordingly, a court might be able to make an order that the squatter be given title, but in return for paying the open market value of the land to the owner. That would certainly seem to be a possibility, although most commentators feel that the courts would be reluctant to follow that approach. For a commentary on Beaulane v Palmer [2005] All ER (D) 413 see [2005] 148 Property Law Journal 3 . © Practical Lawyer