Facts
Mr Palmer (P) occupied registered land close to Heathrow Airport. He used the land to graze horses, both his own and those belonging to other people, for a continuous period of 12 years.

Until 2003, the registered proprietors, including Beaulane Properties Ltd, were content to allow P to remain in possession of the land.

In 2003, P applied to the Land Registry, under s75 of the Land Registration Act 1925, to be registered with possessory title. This prompted Beaulane to commence proceedings.

Decision
Although the High Court accepted that P had occupied the land for the necessary 12 year period, it upheld the stance taken by Beaulane. Beaulane claimed that the provisions on which P relied to acquire possessory title by adverse possession breached Article 1 of the First Protocol to the European Convention on Human Rights, which became part of English law on 2 October 2000. This provides 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 judgment, Deputy Judge Nicholas Strauss QC stated that the legislation which led to a registered proprietor inadvertently losing their title without proper compensation did not comply with Article 1. Section 3 of the Human Rights Act 1998 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'.

After a thorough review of the development of the law of adverse possession, the judge concluded that the development of the law of adverse possession went awry from Buckinghamshire CC v Moran in 1989 onwards, culminating in JA Pye (Oxford) Ltd v Graham. Because an occupier only needed to prove factual possession and an intention to possess, it became far easier for landowners to lose their title inadvertently, through no fault of their own.

Rejecting this line of reasoning, the judge looked back to the previous line of cases. These required the occupier to prove that their occupation was 'adverse'. Moreover, the occupier's time in adverse possession did not begin until their actions were 'inconsistent with the use or intended use' of the land by the landowner. Because Beaulane had no immediate plans for the land and was content to allow him to remain on the land, P was unable to show that his use was inconsistent. The claim therefore failed.

Comment
This case only affects registered land. Occupiers of unregistered titles can still apply for possessory title by establishing occupation for a continuous period of 12 years and satisfying the requirements under the Land Registration Act 2002.

Because the Human Rights Act 1998 is not retrospective, occupiers of registered land who can prove 12 years' occupation prior to 2 October 2000 are not affected by Beaulane. They can continue to rely on Pye.

Where an occupier relies on occupation between 2 October 2000 and 13 October 2003, the date that the Land Registration Act 2002 came into force, the Land Registry has issued a practice note. The note states that it will require evidence that the occupation is inconsistent with the use or intended use of the land by the landowner.

If the occupier cannot prove 12 years' occupation prior to 13 October 2003, then the new, more onerous provisions of the Land Registration Act 2002 will apply.

Case references
Beaulane Properties Ltd v Palmer (ChD) The Times, 13 April 2005

Buckinghamshire CC v Moran [1989] 2 All ER 225 CA

JA Pye (Oxford) Ltd and JA Pye (Oxford) Land Ltd v UK (Application no 44302/02)

JA Pye (Oxford) Ltd and others v Graham and another [2002] UKHL 30 © In-House Lawyer