Property Law – It saved the tax payer millions, but it isn’t that big a deal

By : Steven Woolf

So says Steven Woolf in his assessment of the law of Adverse Possession following the judgment of the Grand Chamber in Pye v United Kingdom

J.A. Pye (Oxford) Ltd and another v United Kingdom Application 44302/03 [2007] All ER (D) 177 (Aug)

Considering the amount of column inches written about the land that J.A. Pye lost as a result of the adverse possession claims of the Grahams, one might think the final decision of the Grand Chamber of the European Court of Justice was a pretty significant decision to all property owners and their lawyers. In fact apart from the millions of pounds the United Kingdom Government has now saved in compensation, the actual legal consequences could be said to be quite limited. The reason for this is simply that with the introduction of the Land Registration Act 2002 (commencement date 13^th October 2003) and the passing in October 2006 of the three year transitional period, adverse possession as we knew it; namely the acquiring of land summarily by reason of 12 years user has gone to be replaced by far narrower adverse possession parameters.
What we have been left with is the right to apply to the Land Registry, but with the almost inevitable result that once the registered proprietor is notified of the application of the prospective adverse possessor, the application will be rejected. It is only therefore in relation to the three exceptions that the decision of Pye has an effect. The three exceptions are (a) unconscionable (b) some other reason and (c) reasonable mistake as to the location of the boundary.
Now that the Grand Chamber has determined that the loss by the registered proprietor of land through adverse possession is not a violation of Article 1 of Protocol 1 (protection of property) to the European Convention on Human Rights, the old principles of factual possession combined with mental intention will continue to be assessed, but only of course in the very limited circumstances of the exceptions mentioned above.
The Grand Chamber came to its view by concluding that there was nothing offensive to one’s Human Rights in two fundamental principles of possessory claims by reason of long user.
Firstly it was concluded that the existence of limitation period for actions to recover land pursued a legitimate interest and secondly that it was not “manifestly without reasonable foundation” for the registered proprietors interest in the land to be extinguished at the end of the limitation period.
 
As a result the Grand Chamber concluded that the fair balance required by Article 1 of Protocol No. 1 was not upset by the manner in which J.A. Pye lost the land. It follows that although J.A. Pye has come to the end of the litigation road, adverse possession still lives on but that it does so within the confines of the Land Registration Act, and is not burdened by Europe and the Human Rights legislation.