Adverse possession –– Limitation period –– Intention to possess –– Possession commenced under licence –– Whether intention to possess established by facts –– Whether squatters had intention to possess disputed land –– Human Rights Act 1998 –– Whether acquisition of land by adverse possession breaches European Convention rights –– Whether European Convention impinges upon Limitation Act 1980
Between 1975 and 1977, the first appellant acquired a substantial area of farmland that included the disputed land. Its intention was to hold the disputed land until planning permission could be obtained for development. From 1977, the first appellant entered into a succession of seasonal grazing agreements relating to the disputed land with the owners for the time being of the adjoining property, Manor Farm. In February 1983 JG, the then owner of Manor Farm, was granted a grazing licence to use the disputed land. In the same year, an agreement was reached under which JG was to plough and reseed the disputed land, as contractor for the first appellant, in return for a payment of £650. A licence to cut hay was granted in 1984. A request for a further licence in 1985 was unanswered. Between 1986 and 1999, JG and his son, MG, continued to graze the disputed land and to maintain and fertilise it. In 1985 the second appellant, a wholly owned subsidiary of the first appellant, acquired the disputed land by a transfer. In the court below, Neuberger J held that JG and MG had established the requisite intention to possess, their possession becoming adverse from 1 September 1984: [2000] 2 EGLR 137. On appeal, the appellants contended that the requirement of intention to possess had not been established, and that the provisions of both the Human Rights Act 1998 and the European Convention impinged upon the Limitation Act 1980 and the acquisition of title by adverse possession.
Held: The appeal was allowed. JG and MG did not have the required intention to possess the disputed land. In the context of an initial permissive use under licence, and the continuation of the same after the expiration of the licence, MG’s account of his state of mind was not that of a person using land with an intention of possessing it to the exclusion of the first appellant. There was no direct evidence that JG and MG ever changed their intentions regarding the use of the land after the end of August 1984. They did not do anything on the disputed land that they could not have done, and had not in fact done, under the grazing agreement. Their attitude to the land remained the same. There was no adverse possession. The Convention right on the protection of property in Article 1 of the first protocol does not impinge upon the relevant provisions of the Limitation Act 1980. The extinction of the title of a claimant, where legal proceedings have been delayed for 12 years, is not a deprivation of possessions or a confiscatory matter; it is simply a logical and pragmatic consequence of barring a right to bring an action after the expiry of the limitation period. If the Convention did impinge, the relevant provisions of the 1980 Act were “in the public interest” within the meaning of Article 1.
The following cases are referred to in this report.
Buckinghamshire County Council v Moran [1990] Ch 623; [1989] 3 WLR 152; [1989] 2 All ER 225, CA
Lodge v Wakefield Metropolitan City Council [1995] 2 EGLR 124; [1995] 38 EG 136
Ocean Estates Ltd v Pinder [1969] 2 AC 19; [1969] 2 WLR 1359
Powell v McFarlane (1977) 38 P&CR 452
Pressos Compania Naviera SA v Belgium A/332 (1996) 21 EHRR 301
Pye (Oxford) Ltd (JA) v Graham [2000] Ch 676; [2000] 3 WLR 242; [2000]2 EGLR 137
R v Secretary of State for the Environment, ex parte Davies (1991) 61 P&CR 487; [1991] 1 PLR 78; [1991] JPL 540
Stubbings v United Kingdom (1997) 23 EHRR 213
Tecbild Ltd v Chamberlain (1969) 20 P&CR 633; (1969) 209 EG 1069, CA
This was an appeal by the appellants, JA Pye (Oxford) Ltd and JA Pye (Oxford) Land Ltd, against a decision of Neuberger J refusing their claim for possession against the defendant administrators, Caroline Graham and Charles Graeme Denton.
Jonathan Gaunt QC, David Pannick QC, Jonathan Small and Monica Carss-Frisk (instructed by Darbys Mallam Lewis, of Oxford) appeared for the appellants; Kim Lewison QC, Martin Dray and Jane Mulcahy (instructed by Burges Salmon, of Bristol) represented the respondents.
Giving judgment, MUMMERY LJ said:
1. This is an appeal from an order made by Neuberger J on 4 February 2000. He dismissed an action by JA Pye (Oxford) Ltd (Pye) and another company in the Pye group against Mrs Caroline Graham and Mr Charles Denton (the defendants). They are sued as the personal representatives of the late Mr Michael Graham, who died in 1998. The action by Pye, as registered proprietor of 25ha (about 57 acres) of farmland at Henwick Manor, Thatcham, near Newbury, Berkshire (the disputed land), is for recovery of that land. The judge held that the action commenced by writ dated 20 January 1999 was statute-barred under the Limitation Act 1980 (the 1980 Act).
2. The judge also dismissed an application by Pye for rectification of the title of the disputed land by cancellation of cautions registered in favour of Mr Michael Graham.
3. The detailed and careful judgment is now reported at [2000] Ch 676*. At p709E-F the judge concluded:
the Grahams enjoyed factual possession which was adverse to the claimants, and had the necessary animus possidendi, in respect of the disputed land from 1 September 1984 onwards. I therefore conclude that the present action by the claimants for possession of the disputed land must fail in light of section 15, [of the Act of 1980] and that the claimants’ title to the disputed land has been extinguished by virtue of section 17. Accordingly, I believe that it follows that
* Editor’s note: Also reported at [2000] 2 EGLR 137
4. Under section 75 of the Land Registration Act 1925, Pye is deemed to hold the disputed land upon a bare trust for the defendants until they are registered as proprietors in their place.
Issues on the appeal
5. Pye’s appeal against that outcome raises two main questions:
(1) Intention to possess
Did the judge correctly apply to the primary facts found by him the requirement that the squatters on the disputed land (Mr Michael Graham and his father, Mr John Graham) had the intention during the relevant period to possess the disputed land (animus possidendi)? The relevant legal principles were laid down by this court in Buckinghamshire County Council v Moran [1990] Ch 623 (Moran).
(2) Human Rights Act point
Do the provisions of the Human Rights Act 1998, in particular section 3, and Article 1 of the First Protocol to the Convention, have any, and if so, what, impact upon the outcome of this appeal?
This question did not arise for decision by the judge, as the trial of the action took place before the relevant provisions of the 1998 Act came into force on 2 October 2000.
Proceedings
6. There were two sets of proceedings before the judge:
(1) On 30 April 1998 Pye issued an originating summons for the cancellation of cautions registered on behalf of Mr Michael Graham at the Land Registry against the disputed land on 11 August 1997.
(2) On 20 January 1999 Pye issued a writ claiming possession of the disputed land. The only defence was that the claim was statute-barred.
7. The judge held that time began to run in favour of the defendants on 31 August 1984, and that it only stopped running when Pye issued its writ claiming possession, by which time more than 12 years had elapsed from the date upon which Pye had been dispossessed of the disputed land.
8. It is common ground that, in the light of the facts found by the judge, it is unnecessary for this court to decide the question, which was argued at length below, of whether the application for cancellation of the cautions was an “action brought to recover land” within the meaning of the 1980 Act. This court accordingly heard no argument on that point.
Limitation Act 1980
9. Section 15 of the 1980 Act provides:
(1) No action shall be brought by any person to recover any land after the expiration of twelve years from the date on which the right of action accrued to him or, if it first accrued to some person through whom he claims, to that person
Schedule 1 to the Act contains provisions for determining the date of accrual of rights of action to recover land. Para 1 in Part I provides:
Where the person bringing an action to recover land, or some person through whom he claims, has been in possession of the land, and has while entitled to the land been dispossessed or discontinued his possession, the right of action shall be treated as having accrued on the date of the dispossession or discontinuance.
It is agreed that this is not a case of discontinuance of possession of the disputed land by Pye.
Para 8 of Schedule I provides:
(1) No right of action to recover land shall be treated as accruing unless the land is in the possession of some person in whose favour the period of limitation can run (referred to below in this paragraph as “adverse possession”); and where under the preceding provisions of this Schedule any such right of action is treated as accruing on a certain date and no person is in adverse possession on that date, the right of action shall not be treated as accruing unless and until adverse possession is taken of the land.
Para 8(4) of Schedule 1 provides:
For the purpose of determining whether a person occupying any land is in adverse possession of the land it shall not be assumed by implication of law that his occupation is by permission of the person entitled to the land merely by virtue of the fact that his occupation is not inconsistent with the latter’s present or future enjoyment of the land.
This provision shall not be taken as prejudicing a finding to the effect that a person’s occupation of any land is by implied permission of the person entitled to the land in any case where such a finding is justified on the actual facts of the case.
Judgments in Moran
10. In Moran, the Court of Appeal approved the statement of the law in the judgment of Slade J in Powell v McFarlane (1977) 38 P&CR 452 that three requirements must be satisfied by a person seeking to establish title to land by adverse possession.
(1) Factual possession
He must show that for 12 years or more he had single and exclusive possession of the land. In Powell, Slade J held at pp470-471:
The question what acts constitute a sufficient degree of exclusive physical control must depend on the circumstances, in particular the nature of the land and the manner in which land of that nature is commonly used or enjoyed… Everything must depend on the particular circumstances, but broadly, I think what must be shown as constituting factual possession is that the alleged possessor has been dealing with the land in question as an occupying owner might have been expected to deal with it and that no-one else has done so.
Pye does not challenge the judge’s findings of primary fact on the use of the disputed land by the Grahams.
(2) Intention to possess
He must also show that during the period of 12 years or more in which he enjoyed factual possession of the land, he had the requisite intention to possess the land. In Powell, Slade J held at pp471-472 that this:
involves the intention, in one’s own name and on one’s own behalf, to exclude the world at large, including the owner with paper title…, so far as is reasonably practicable and so far as the processes of the law will allow.
It was made clear in Moran at p643E that it is not necessary for the defendant to establish “an intention to own or even an intention to acquire ownership” of the land.
In ascertaining the intention to possess, the court has regard to all the circumstances. Three factors concerning intention to possess are especially relevant in this case.
(a) Owner’s intentions
11. Although the relevant intention to possess is that of the person in factual possession of the land, it was held in Moran that the intentions of the paper title owner are not irrelevant. Slade LJ said at pp639H-640D:
If in any given case the land in dispute is unbuilt land and the squatter is aware that the owner, while having no present use for it, has a purpose in mind for its use in the future, the court is likely to require very clear evidence before it can be satisfied that the squatter who claims possessory title has not only established factual possession of the land, but also the requisite intention to exclude the world at large, including the owner with paper title… In the absence of clear evidence of this nature, the court is likely to infer that the squatter neither had had nor had claimed any intention of asserting a right to the possession of the land.
(b) Statements of intention
How are the intentions of the squatter ascertained by the court?
In Tecbild Ltd v Chamberlain (1969) 20 P&CR 633 Sachs LJ said at p643:
In general, intent has to be inferred from the acts themselves.
12. This general approach was approved by Slade LJ in Moran at p477. He commented upon the evidential difficulties, holding that, although past or present declarations by the person in possession as to his intentions may “provide compelling evidence that he did not have the requisite animus possidendi,” the squatter’s statements in oral
(c) Oral offers of squatter
Evidence that the squatter was willing to pay rent to the paper title owner during the relevant period, or to take a tenancy from him, may be relevant to ascertainment of the squatter’s intention to possess the land, but the squatter’s statements to that effect do not necessarily constitute admissions by him that he lacked the requisite intention to possess: see Ocean Estates Ltd v Pinder [1969] 2 AC 19 at p24 and Lodge v Wakefield Metropolitan City Council [1995] 2 EGLR 124 at p126; cf R v Secretary of State for the Environment, ex parte Davies (1991) 61 P&CR 487 at p496.
(3) Adverse possession
13. The squatter must establish that his possession of the land during the period of 12 years or more has been “adverse possession” within the meaning of the 1980 Act.
As Slade LJ explained in Moran at p636G:
Possession is never “adverse” within the meaning of the Act [of 1980] if it is enjoyed under a lawful title. If, therefore, a person occupied or used this land by licence of the owner… and his licence has not been duly determined, he cannot be treated as having been in “adverse possession” as against the owner with the paper title.
Factual possession
14. There is no appeal by Pye against the judge’s findings of primary fact about the Grahams’ actual use of the disputed land. The criticisms of the judgment concern the interpretation of those facts, the inferences from them and the application of the statutory provisions, as authoritatively interpreted in Moran, to the facts.
15. The relevant history of the disputed land extending over 17 years can be subdivided into five periods.
(1) September 1982 to February 1983: acquisition of Manor Farm and occupation of disputed land
16. In 1982 Mr John Graham, who farmed land elsewhere in the area, and his wife bought Manor Farm to provide a home and a farm for their son, Michael. They bought it at auction from Mr and Mrs Snook, who transferred it to them and their son on 29 September 1982. The farm is 67ha in area. Initially, the land was farmed by Mr Michael Graham on behalf of a partnership, which included his father. After 1 April 1992 he farmed it on his own until he was killed in a tragic shooting accident on 11 February 1998.
17. One of the companies in the Pye group, which was engaged in property development, was the registered proprietor of the neighbouring disputed land, which had been acquired as part of Henwick Manor in 1977. It consisted of four fields: Drive Field, Wallis Field, Paddocks and Hill Field. The main means of access to it was through a gate close to the farmhouse. There was also a road gate. That was rarely used. It had been kept locked with a padlock from a time before the Grahams began to use the disputed land. The Grahams had the key to the padlock.
18. Pye originally owned the whole of Henwick Manor. It retained the disputed land upon the sale of Manor Farm to Dr and Mrs Holloway, the predecessors in title of the Snooks and the Grahams. Pye considered that the disputed land had development potential. It intended to retain it until planning permission could be obtained for development. From 1977 onwards, Pye entered into a succession of seasonal grazing agreements relating to the disputed land, with the owners for the time being of Manor Farm.
19. The Grahams knew that the disputed land had been farmed together with Manor Farm and that Pye had no immediate use for it. Mr John Graham approached Pye through its agent, Mr Timothy Evans, of Pearsons, with a view to farming the disputed land. He was told that he would be granted a grazing licence of the disputed land in 1983, and that, in the meantime, he was permitted to occupy it upon the basis that he cleaned out a ditch and carried out necessary hedge trimming and fence strengthening on the boundaries.
(2) February 1983 to 1 December 1983: grazing agreement
20. On 1 February 1983 Pye entered into a grazing agreement with Mr John Graham. This is an important document. It constitutes a contemporaneous and irrefutable record of the common intention of Pye and the Grahams regarding possession of the disputed land.
21. It was referred to in the letters of both parties as “the Grazing Licence”. As is abundantly clear from the terms of the agreement and from the contemporaneous correspondence, Pye was anxious to avoid giving possession of the disputed land to the Grahams and to avoid the risk of creating an agricultural tenancy of the disputed land in their favour.
22. In the agreement, Pye agreed to grant to Mr John Graham (the grazier), and he agreed to take, the “right to graze” the disputed land upon the following agreed terms and conditions:
1. THE GRAZIER shall have the right to occupy and graze or mow the said land from the first day of February 1983 until the thirty first day of December 1983 and shall have the use of the said land only for grazing and one cut of grass.
2. THE GRAZIER shall pay to the Owner the sum of £2000 in respect of the period of occupation mentioned in clause 1 above…
3. THE GRAZIER shall use the said land for the purpose only of grazing or mowing the same.
4. THE GRAZIER shall use only sheep/cattle/horses/and/or ponies for the purpose of grazing the said land and shall not allow the said land to be entered upon or in any way used by goats, pigs, poultry or any diseased animals.
5. THE GRAZIER agrees to the following conditions
(a) That he will not permit any trespass upon the said land
(b) That he will keep the said land clean and free from Spear Thistle, Creeping or Field Thistle, Curled Dock, Broad-leaved Dock and Ragwort
(c) That he will keep the gates, fences and ditches in good order
(d) That he will not pasture on the said land any but his own animals
(e) That he will graze and use the said land in a good and husbandlike manner
(f) That he will not assign the benefit of this agreement or part with possession of the land.
6. [Immaterial]
7. [Immaterial]
8. THIS AGREEMENT is not a contract of tenancy for the purposes of the Agricultural Holdings Act 1948.
9. IT IS EXPRESSLY agreed and understood that the Owner does not undertake to repeat this grazing licence for another period but if he agrees to do so a fresh agreement will have to be entered into by the Grazier to operate from a date subsequent to the agreed period such fresh agreement to operate as a new and distinct contract.
10. THE OWNER RESERVES the right to terminate this agreement and gain possession of the land on service of six months notice at any time during the period of the agreement with a proportional refund of the licence fee but without any other form of compensation.
23. Although there are references in the grazing licence to the grazier’s “occupation” of the land, and to his not parting with “possession” of it and not permitting any trespass upon it, I am satisfied that, construing the document as a whole, it created only a personal licence for the Grahams to go onto, and use, the land for the specified purposes. The parties plainly did not intend that the Grahams should have exclusive possession of the disputed land. This point is relevant to the ascertainment of the probable intentions of the parties regarding the continued use of the disputed land after the grazing agreement expired.
24. In February 1983 Mr John Graham expressed concern over the condition of the grass in Drive Field. He suggested that it might be reseeded. There was concern on the part of Pye’s agent, Mr Evans, that ploughing the field might involve the danger of creating a tenancy. So it was agreed that Mr John Graham would act as contractor for Pye in respect of the reseeding and would be paid £650. That sum was to be deducted from the sum of £2,000 due under the grazing agreement.
(3) January 1984 to 31 August 1984: continuing use following Pye’s refusal to renew grazing agreement
25. In January 1984 Pye refused Mr John Graham’s request for a grazing agreement for the 1984 season. Pye anticipated seeking planning permission for the development of some, or all, of the disputed land. It did not want the land grazed for fear of prejudicing its prospects
26. Mr Graham submitted an account for an agreed figure for reseeding works and for reimbursement for loss of grazing from August to December 1983. During that period, the old pasture had been ploughed up and resown. This account was paid in April 1984.
27. In March 1984 Mr Michael Graham turned cattle onto the disputed land. They grazed it until November. It was Mr Michael Graham’s intention to continue to use the land for grazing until requested not to. He harrowed, rolled and fertilised it, and he spread dung and straw on the land in February and March 1984. He did so in the hope of being granted a further licence to graze it.
28. In June 1984 it was agreed between Mr Evans and Mr John Graham that Mr Graham would purchase the standing crop of grass on the disputed land for one hay cut only for the sum of £1,100.
(4) 1 September 1984 to end 1985: no response from Pye to requests for grazing agreement
29. In November 1984 Mr John Graham sent a cheque for £1,100 to Mr Evans in respect of the hay cut. Mr Evans informed him that he had asked Pye whether the land might be available next year, either for a grazing licence or for a cut of hay.
30. In February or March 1985 Mr Michael Graham harrowed and rolled the disputed land. He fertilised it at Easter.
31. In March 1985 Mr John Graham made a phone call to Mr Evans, inquiring whether the disputed land was available that year. There was no response from Pye.
32. In May 1985 Mr Graham expressed interest to Mr Evans in taking a cut of hay off the disputed land. Again, there was no response from Pye.
(5) 1986 to 1999: continuing use and maintenance by the Grahams
33. There was little change in the use of the disputed land by the Grahams in this period. During the course of each year, they continued to graze between 80 and 140 cattle on the land for nine or 10 months; they maintained the hedges, ditches and fences; and they harrowed, rolled and fertilised the land. In 1994 (possibly even a year or two earlier) the Drive Field was put to arable use. The remainder of the disputed land continued to be used and maintained in the same way as during the period of the grazing agreement.
34. Upon the basis of these facts, the judge held that from 1 January 1984 until 20 January 1999 the Grahams had been dealing with the disputed land by using it and maintaining it as an occupying owner might have been expected to deal with it. He concluded at p704C-D:
the Grahams enjoyed factual possession of the disputed land for the period from 1 January 1984 onwards.
Intention to possess
35. Under the heading “Did the Grahams have the necessary animus possidendi?”, the judge carefully examined, at pp704D-708D, seven different factors that, taken together, led him to conclude at p708D-E:
from 1 January 1984 the Grahams not only had factual possession of the disputed land, but also there is “clear evidence” that they had the necessary intention to possess the disputed land.
The judge’s conclusions on the seven factors may be summarised as follows:
(1) Actual activities
36. There was beneficial use and responsible maintenance of the disputed land by the Grahams during the course of each year for more than 12 years.
(2) Nature and history of the land
The disputed land had been used as grazing land for some years before the Grahams used it for that purpose. It was hard to see what an occupying owner of it would have done over and above the activities of the Grahams after 1 January 1984.
(3) Enclosure and access
Although the Grahams had not themselves enclosed the land, it having already been fenced in (subject to a stile and a locked gate), they ensured that it remained effectively enclosed and barred to public access by maintaining the hedges and fences and retaining the key to the locked gate.
(4) General attitude of squatter to land
The Grahams treated and thought of the disputed land as one would have expected of an occupying owner, looking after it and keeping it in good heart.
(5) Circumstances at beginning of adverse possession
37. Although there had initially been an informal grazing licence from 29 September 1982, and a written licence from 1 February 1983 to 31 December 1983, followed by a licence to cut hay in 1984 and by the Grahams’ hopes and requests for a new grazing licence, the Grahams had received an emphatic refusal by Pye on 17 January 1984 to grant a new grazing licence. There was never any suggestion of any reconsideration of that decision. That fact “dissipated” any assistance that Pye could derive from the existence of the grazing licences for the argument that the Grahams did not have sufficient animus possidendi.
(6) Intentions of owner known to the squatter
38. The Grahams knew that Pye had no immediate use for the disputed land and was holding it for the purpose of developing it at some time in the future when it could obtain planning permission. But this point was not of much assistance to Pye: it did not mean that the Grahams appreciated, or were aware, that their continued use and occupation of the land for the purpose of grazing was consistent with Pye’s intention regarding the disputed land, in so far as it had expressly or impliedly communicated it to the Grahams.
(7) Expressed intentions and the unexpressed understanding of the squatter
39. These were of “very limited assistance” in so far as they were invoked to assist the squatter. The thoughts, hopes and communications of Mr Michael Graham regarding a new grazing licence, following the firm refusal communicated in mid-January 1984 and the absence of any evidence of any possible change of heart, were not “inconsistent with his having animus possidendi, at least from the end of August 1984″.
Intention to possess: conclusion
40. I am unable to agree with the judge’s interpretation of the facts, his inferences and his application of the law on this critical point. His analysis of the seven factors, for the purpose of determining whether the Grahams had the requisite intention to possess the disputed land, is an impressively thorough examination of the material, but his overall conclusion significantly underestimates the importance of uncontradicted direct evidence, and leads to a conclusion that is neither justified by the facts nor by a proper application of the 1980 Act, as interpreted in Moran.
41. In my judgment, the Grahams did not have the required intention to possess the disputed land, Pye was not dispossessed of it, and the limitation period never began to run against it. The reasons for this conclusion are as follows:
(1) The issue of the Grahams’ intentions at the relevant time is one of fact, ie their subjective state of mind respecting their use of the disputed land from September 1982.
(2) Like other facts, a state of mind must be proved. The available evidence relevant to that issue may take different forms. It may consist of direct oral or written evidence given at the trial by the person whose state of mind is in issue. Evidence may be given by that person and by others about that person’s past actions and statements relating to his state of mind. Evidence may be given by that person and by others about the use of the land and the surrounding circumstances of the use. Inferences can be made from that circumstantial evidence about the probable state of mind of the person when committing acts of user on the disputed land.
(3) On the issue of the Grahams’ intention to possess, the judge concentrated upon the circumstantial evidence from which inferences could be made almost to the exclusion of the unchallenged evidence of the Grahams. Their evidence on this issue did not consist of worthless,
(4) I return to the beginning. When the Grahams first started to use the disputed land in September 1982, they neither had possession of it nor did they intend to possess it. Their use was pursuant to a personal licence for a limited purpose. Pye retained possession. At that time, the position of the Grahams was plain: they were licensees of the disputed land; they were not in possession of it; they did not intend to possess it. Mr John Graham expressly accepted in his evidence that he and his son never had a tenancy of the disputed land. The terms of the grazing agreement, and the circumstances in which it was made, are clear. There was no dispossession of Pye while the agreement was in force. There was no question of “adverse possession” before the expiration of that agreement: their use of the disputed land did not amount to factual possession, and even if it did, it was permissive, not adverse.
(5) Upon the expiry of the 1983 grazing agreement and of the 1984 agreement allowing them to take a cut of hay, the Grahams’ use of the disputed land was potentially adverse. Pye refused to enter into a fresh agreement with the Grahams. So their use of the disputed land ceased to be permissive. The crucial point, however, is whether there was any other relevant change affecting the requirements of the 1980 Act, and, if so, whether that change constituted dispossession of Pye. Upon this point, it is not sufficient to say, as was submitted by Mr Kim Lewison QC, on behalf of the Grahams, that: Pye was dispossessed as soon as Pye’s permission expired (ie by the beginning of September 1984); from then onwards, the Grahams were using the land as far as was practicable and as an occupying owner would; and Pye could have brought legal proceedings to prevent them from trespassing upon the land by entering on it and using it for grazing without consent. I agree that dispossession can occur without any intention on the part of the squatter to possess the land wrongfully. A squatter may, for example, be held to have intended to possess land and to dispossess the true owner, even if he has acted in the honest, but mistaken, belief that the land was, in fact, his. This is often the case in boundary disputes. As already explained, however, there is no dispossession of the paper title owner for the purposes of the 1980 Act unless and until there is a person in adverse possession, ie in actual possession to the exclusion of the owner and with the requisite intention to possess the land to his exclusion. In many cases, the intention to possess can and will be inferred from all the circumstances surrounding the factual use of the land by the squatter, but, in my view, simply continuing a limited use of land after the expiration of a personal limited licence does not necessarily justify an inference of the requisite intention to possess.
(6) As to the circumstances of actual use of the disputed land, nothing changed, except the cesser of permission from Pye. Both the nature and extent of the Grahams’ use of the disputed land, which did not amount to factual possession of it during the period of the licence, remained the same.
(7) What of the Grahams’ intentions with regard to their continuing and unchanged use of the disputed land? Did they change, and, if so, how and when? In his consideration of those matters in the analysis of the seven factors, the judge concentrated upon the objective circumstantial evidence, but understated the cogency of the direct evidence on these points from Mr Michael Graham. There was no reason to disbelieve or to downgrade the probative value of his evidence about his state of mind. His unsigned and undated witness statement, which was received in evidence under the Civil Evidence Act on account of his having died before the trial, addressed these issues. It was not challenged by Pye. It was not contradicted by Mr John Graham.
42. As to the continuation of grazing on the land in 1984, he said at para 14:
My intention was to carry on using the Land for grazing until I was requested not to. However, no request was ever made to me or my father to vacate the Land or to pay for the grazing which was taking place. Had Pye requested payment I would have happily paid them. In short I took advantage of the ability to use the land as no-one challenged me…
He continued:
16. I farmed the Land during the autumn of 1984 through to the spring of 1985 in the same way as I had in the previous year [ie grazing, spreading dung, harrowing and rolling the Land]. I was aware that there was a risk that I would not obtain the benefit of that work as again in 1984 like 1983 there was no formal grazing licence or an agreement to take a cut of hay. I would have paid Pye for a grazing licence or a cut of hay but in the absence of any formal agreement I was willing to take a chance that an agreement would be forth-coming later.
17. In the light of the lack of interest shown by Pye during the 1984 grazing season I continued to use the Land to what I considered to be its best use…
18. During the spring of 1985 I believe I made one or two telephone calls to Tim Evans to ask for a grazing licence for the 1985 season. I would have preferred to have obtained a formal agreement but in the absence of one I continued to farm the Land in the same fashion as I had in the 1984 and 1983 seasons. I did not receive a response from Tim Evans to my request and after a couple of attempts I gave up trying and decided to leave matters until I heard from him or from Pye directly.
19. I believed at that time that it was possible to obtain ownership of Land after it had been occupied for a sufficient number of years which I mistakenly thought was a period of 7 years. However, I anticipated that in reality Pye or Tim Evans would contact me at some future point and I was happy to leave matters until they did.
20. I used all the Land for grazing until 1994 and maintained the same regime of management as that set out in 1983…
43. (8) In my judgment, Mr Michael Graham’s account of his state of mind, when considered in the context of the circumstances of an initial permissive use under licence and the continuation of the same use after the expiration of the licence, is not that of a person who is using the land with the intention of possessing it to the exclusion of Pye. It is that of a person who, having obtained the agreement of Pye to the limited use of the land in the past, continues to use it for the time being in exactly the same fashion in the hope that in the future Pye will again be willing to accede to his requests to enter an agreement authorising him to use it.
(9) In brief, there was no direct evidence that the Grahams ever changed their intentions regarding the use of the land, after the end of August 1984, from what they had been when they first started to use it under licence in September 1982. That initial use was on the basis of a common intention that Pye should retain possession of it (ie as part of a land bank for future development, if planning permission were granted) and that the Grahams should use it only for the limited purpose of grazing it and without any intention to possess it to the exclusion of Pye. After 31 August 1984, they did not do anything on the disputed land that they could not have done, and had not in fact done, under the grazing agreement. Their attitude to the land remained the same. Such direct evidence as there was on the intention issue positively indicated that there was probably no change in the intentions of the Grahams or of Pye.
44. In my judgment, the judge misdirected himself in drawing an inference of an intention to possess from the objective circumstantial evidence analysed under the seven headings. That process led him to a conclusion that was contrary to the credible and uncontradicted evidence from the squatters themselves, given against their own interest. If, as is my view, there was no ” clear evidence” of the Grahams’ intention to possess, there was no dispossession of Pye, and time did not start to run against it under the 1980 Act.
Human Rights Act point
45. This human rights point did not feature at all in the court below, as the relevant provisions of the Act did not come into effect until after the trial was over. But, in the concluding section of his judgment, Neuberger J made comments sympathetic to an argument that the result reached by him did not accord with justice, could not be justified by practical considerations in the context of a system of registered land, and involved a deprivation of property rights that was illogical, disproportionate and draconian.
46. The 1998 Act came into effect on 2 October 2000. The appeal came on for hearing on 4 December 2000. By then, Pye had reinforcements in the shape of Mr David Pannick QC and Miss Monica Carss-Frisk, who dealt specifically and solely with the 1998 Act, while Mr Jonathan Gaunt QC concentrated upon the evidence and arguments on the limitation point, upon which Pye has succeeded, thereby rendering a decision on these new arguments unnecessary for the disposition of the appeal.
47. Judicial caution, coupled with an indication that there is, in the offing, another appeal raising the same point, favours resisting the temptation to express unnecessary opinions upon many of the excellent arguments addressed to the court by both sides on the retrospectivity of the 1998 Act, and on the possible impact of Article 1 of the First Protocol to the Convention, in litigation between private citizens about the acquisition of title to real property by adverse possession.
48. The scope of the argument on the 1998 Act has, in fact, contracted more as a result of the sensible initiatives of counsel rather than of case management by the court.
49. Pye began with assertions in its skeleton argument that: the decision of Neuberger J breached Pye’s right to its possessions guaranteed by Article 1 of the First Protocol, as now protected by the 1998 Act; the deprivation of its property without compensation was disproportionate to any legitimate public interest, and breached the fair balance required between the interests of Pye and the interests of society as a whole; in the case of registered land such as this, a 12-year limitation period was not justified in all cases; it did not assist the defendants that the 1998 Act was not in force at the date of the trial; it would impede the central purpose of the 1998 Act to implement the Convention in England and Wales if the Court of Appeal were obliged to give a judgment that it regarded as breaching Convention rights; and, although it is accepted that the court has no power to abolish the statutory concept of adverse possession, the court is under a duty under sections 3 and 6(1) of the 1998 Act to define and apply the criteria of adverse possession in the 1980 Act in a manner consistent with the Convention rights. Pye does not, however, claim any declaration of incompatibility under section 2 of the 1998 Act, and it was not contended that the law as laid down in Moran was incompatible with the Convention right.
50. The defendants responded that the effect of the judgment of Neuberger J, if correct, is that: the defendants were the owners of the disputed land for more than four years before the 1998 Act came into force; if Article 1 of the First Protocol has any impact upon this case, it is the defendants, as the owners in possession of the disputed land, and not Pye, who are entitled to the peaceful enjoyment of their possessions; the provisions of the 1998 Act relied upon by Pye (sections 3 and 6) do not have retrospective effect; and the operation of the 1980 Act against a paper title owner who has done nothing to assert his rights for 12 years or more is compatible with the Convention.
51. By the end of the day, the parties focused upon one main point, namely the impact of section 3 of the 1998 Act upon the interpretation of the relevant provisions of the 1980 Act. It is neither necessary nor appropriate to express any view upon the very difficult and important questions, which have been extensively debated elsewhere, concerning the effect of section 6 (1) of the 1998 Act on private law issues arising between one citizen and another.
52. My conclusions on the section 3 point, stated briefly for the reasons already indicated, are that:
(1) The principle of the interpretation of primary and secondary legislation contained in section 3 of the 1998 Act can be relied upon in an appeal that is heard after that Act came into force, even though the appeal is against an order made by the court below before the Act came into force.
(2) Section 3 does not affect this case. The only Convention right relied upon (the protection of property in Article 1 of the First Protocol) does not impinge upon the relevant provisions of the 1980 Act. Those provisions do not deprive a person of his possessions or interfere with his peaceful enjoyment of them. They deprive a person of his right of access to the courts for the purpose of recovering property if he has delayed the institution of his legal proceedings for 12 years or more after he has been dispossessed of his land by another person who has been in adverse possession of it for at least that period. The extinction of the title of the claimant in those circumstances is not a deprivation of possessions or a confiscatory measure for which the payment of compensation would be appropriate; it is simply a logical and pragmatic consequence of the barring of his right to bring an action after the expiration of the limitation period.
(3) Even if, contrary to my view, that Convention right potentially impinges upon the relevant provisions of the 1980 Act, those provisions are conditions provided for by law and are “in the public interest” within the meaning of Article 1. Such conditions are reasonably required to avoid the real risk of injustice in the adjudication of stale claims; to ensure certainty of title; and to promote social stability by the protection of the established and peaceable possession of property from the resurrection of old claims. The conditions provided in the 1980 Act are not disproportionate; the period allowed for the bringing of proceedings is reasonable; the conditions are not discriminatory; and they are not impossible, or so excessively difficult, to comply with as to render ineffective the exercise of the legal right of a person, who is entitled to the peaceful enjoyment of his possessions, to recover them from another person who is alleged to have wrongfully deprived him of them. I agree with the judgment of Keene LJ, which I have read in draft.
Result
53. I would accordingly allow the appeal.
Agreeing, KEENE LJ said:
54. I agree, and I would add only a few comments of my own upon the subject of the European Convention on Human Rights and the Human Rights Act 1998.
55. The starting point for present purposes must be the fact that limitation periods on bringing legal proceedings are, in principle, not incompatible with the European Convention. The European Court of Human Rights itself has acknowledged that: see Stubbings v United Kingdom (1997) 23 EHRR 213. That is hardly surprising, since time limits on the starting of legal proceedings are expressly recognised by the Convention itself. Thus, Article 35(1) requires any application to the European Court of Human Rights to be submitted within six months from the date when domestic remedies have been exhausted. So the process whereby a person will be barred from enforcing rights because of the passage of time is clearly acknowledged by the Convention. This position obtains, even though limitation periods both limit the right of access to the courts and, in some circumstances, have the effect of depriving persons of property rights, whether real or personal, or of damages. Even the latter may, in some circumstances, be regarded as constituting a “possession”: see Pressos Compania Naviera SA v Belgium A/332 (1996) 21 EHRR 301. There is, therefore, nothing inherently incompatible as between the Limitation Act 1980 and Schedule 1 to Article 1 of the Convention.
56. It has not been suggested in these proceedings that the 12-year limitation period provided for by English law on actions to recover land is itself incompatible with the Convention. In any event, the Strasbourg jurisprudence recognises a margin of appreciation for national legislatures in determining such periods, which exist in most, if not all, European jurisdictions in some shape or form. There is therefore no reason to conclude that section 15 of the Limitation Act is incompatible with Convention rights. Mr Pannick has made it clear that no declaration of incompatibility is sought in these proceedings, even in respect of cases involving registered land.
57. What this demonstrates is that the argument about confiscation or deprivation of property rights without compensation has little to commend it. It was accepted on behalf of the appellants that if this court finds that the respondents had satisfied the requirements of English law as to adverse possession for 12 years, then no breach of the Convention would result. The appellants’ eventual position on this aspect of the case was simply that the court should require strict compliance with Moran, and the criteria for adverse possession as set out in that case. To my mind, that means that the arguments based upon the Human Rights Act
SIR MARTIN NOURSE agreed and did not add anything.
Appeal allowed.
