In the view of the ECJ, the combined effect of LRA 1928 and Limitation Act 1980 is to unlawfully deprive a landowner of his land without compensation (and thus be a breach of Article 1 – entitlement ‘to the peaceful enjoyment of his possessions’). Thus, adverse possession is unlawful unless proper compensation is paid. It is, of course, something we discussed in our December/January issue (p12). But, there are two points particularly worth noting:

• the LR takes the view that the ECJ decision does not, of itself, alter UK domestic law. In its view, therefore, the new adverse possession rules introduced in LRA 2002 (in force since October 2003) are still valid. Moreover, as far as unregistered land is concerned, it still takes the view that a trust for sale may exist in favour of the squatter and it will therefore not alter its previous practices as to registration (assuming the squatter can show 12 years’ adverse possession prior to 2 October 2003);
• on this approach, the real problem is for the government. This is because it is the state that has to compensate the landowner for the unlawful deprivation of his property. For instance, in Pye it is rumoured that the government may have to pay £10m plus some £800,000 in costs.

It follows from the above that there is an element of uncertainty at the moment, especially in respect of pre-October 2003 adverse possession. What is needed is a decision from the UK courts that clarifies the position; logically, it seems likely that the approach in Beaulane will be adopted, and thus adverse possession itself will be unlawful. If that happens, then that really will amount to the abolition of adverse possession. © Practical Lawyer