QUESTION 3 Following the ECJ decision in Pye v
UK [2005], adverse possession will usually be
unlawful:
(i) unless proper compensation is
paid (ii) unless there are exceptional
circumstances (iii) unless the adverse possession postdates
October 2002 (when the new, LRA 2002, regime came into
force)
POSSIBLE ANSWERS
YOUR ANSWER
a.
correct as to (i), (ii)
and (iii)
b.
correct as to (i), (ii);
incorrect as to (iii)
c.
correct as to (i),
(iii); incorrect as to (ii)
d.
incorrect as to (i),
(ii) and (iii)
Commentary: Adverse possession is a
breach of the European Convention on Human Rights (and
so a breach of HRA 1998). That is the decision of the
ECJ in a case that has largely abolished adverse
possession.
The case involved 23 acres of agricultural land which
had been let to a neighbouring farmer under a grazing
agreement. But when that agreement expired the neighbour
remained in occupation and eventually claimed adverse
possession - by which time the land was worth many
millions because of its development potential. The claim
of adverse possession succeeded in the High Court,
failed in the CA, and was upheld by the HL. However, the
ECJ has now held that the whole concept of depriving a
landowner of his land without compensation - which is
the combined effect of LRA 1925 and Limitation Act 1980
- is a breach of Article 1 (entitlement 'to the peaceful
enjoyment of his possessions').
HRA 1998 came into force on 2 October 2000 and is not
retrospective. So adverse possession claims based on 12
years' occupation prior to that date may still succeed
(although that is open to some doubt), but if the 12
years expired after that date then the ECJ decision will
effectively bar any adverse possession claim in respect
of registered land. For unregistered land there is still
some uncertainty (because this case involved registered
land) but the general expectation is that similar
principles will apply.
Further information: The full report
on Pye v UK [2005] can be found here.
