The ink has barely dried on the judgment of the Grand Chamber of the European Court of Human Rights in Ja Pye (Oxford) Ltd v United Kingdom 44302/02; [2007] RVR 302. None the less, the decision has already been the subject of an audacious challenge in the English courts.
In Pye, the European court upheld English rules under which squatters can be registered with title to land after 12 years’ adverse possession. In Ofulue v Bossert [2008] EWCA Civ 7; [2008] PLSCS 20, the Court of Appeal was asked to distinguish the judgment on the ground that English courts enjoy a wide “margin of appreciation” when applying the decision. The Court of Appeal saw off the challenge. It ruled that the determination that English law on adverse possession is compatible with the European Convention on Human Rights (ECHR) was of general application. It was not “fact sensitive” and should be applied in all cases, unless the results would be so anomalous that they would be unacceptable.
The court also considered the requirements that squatters must satisfy to establish a claim to “adverse possession”. The Limitation Act 1980 requires a squatter to be a person in whose favour time “can run”. The court ruled that this requirement is directed to the capacity of the person, and not to the nature of his possession. Therefore, the historic concept that possession must be “adverse” is misleading. A squatter need only prove that it has been in possession of land, with the intention of possessing it, and without the consent of the paper owner. Consequently, a person who wrongly believes that he is a tenant is, none the less, in “possession” of property and need not prove that he intended to exclude the paper owner to acquire the title.
The court rejected arguments that the squatters had started time running afresh under section 29 of the 1980 Act, by claiming that they were entitled to a lease and by making a written offer to purchase the freehold. The court ruled that the squatters’ claim constituted a denial of the landowner’s right to immediate possession and that the squatters’ offer was protected by the “without prejudice” rules. Thus, the landowner was comprehensively beaten on all points.
Practitioners will be disappointed that the court refused to go one step further and overrule the decision in Beaulane Properties Ltd v Palmer [2005] EWHC 817 (Ch); [2005] 3 EGLR 85, requiring squatters who took possession of registered land in a short period between 1988 and 1991 to satisfy additional requirements, based upon the historic concept of “adverse” possession. The judge imposed these requirements before the litigation in Pye was finally determined in order to deal with concerns that English law on adverse possession did not comply with the ECHR. The decision in Beaulane is now widely regarded as being incompatible with the decision in Pye. It also appears to be incompatible with this latest decision. However, their lordships decided that it was unnecessary to consider the point and left practitioners to await the outcome of further proceedings in Beaulane, which are pending.
Allyson Colby is a property law consultant