UK: Acquiring title by adverse possession in breach of human rights

Last Updated: 22 November 2005
Article by Caroline Potter

The European Court of Human Rights held on 15 November that the English law relating to adverse possession is in some cases, in breach of the European Convention on Human Rights.

This decision affects claims for adverse possession made before the implementation of the Land Registration Act 2002 and possibly to claims made in respect of unregistered land.

It is also possible that attention may now be turned to claims for prescriptive easements. We should expect to see test cases looking at the effect of the Human Rights Act in any area where one party is deprived in some way of exercising his full rights of ownership due to the act of another. A fair balance between the interests of a landowner and public interest must be maintained.

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The dispute between Mr and Mrs Graham and JA Pye (Oxford) Limited has been an ongoing saga. The story began in 1977 when the Grahams were granted a grazing licence by Pye. Between 1977 and 1983 a series of similar licences was granted. In 1984 Pye was considering developing the land and decided not to renew the licence. The Grahams, however, continued to use the land. After 12 years the Grahams claimed title to the land because of their continued adverse possession of the land. The Limitation Act 1980 provided that no action could be brought by any owner of land to recover that land if it is possessed by another for twelve years or more. At the first hearing, the Grahams were successful. The Court of Appeal reversed that decision maintaining that the continuation of the Grahams' use of the land was just that – a continuation of a licence and not actual possession.

The Court of Appeal was asked to consider whether the Human Rights Act 1988 had any impact on the matter. The Act had come into force on 1 October 2000; after the Grahams' adverse possession had crystallised. Pye claimed that Article 1 of the European Convention had been breached. This provides that no one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The Court held that the effect of limitation was not a "deprivation of possessions" but the practical consequence of his right of action being time-barred.

The matter reached the House of Lords where it was held that the only question to be considered was whether the person claiming adverse possession had taken possession without the consent of the owner. They were satisfied that the Grahams had taken possession and did not consider the human rights angle as it was conceded that that the Human Rights Act had no retrospective effect.

Pye took the case to the European Court of Human Rights. It complained that it had been deprived of its land by the operation of the UK rules on adverse possession in a manner incompatible with Article 1. The Court ruled by a majority of four to three that the adverse possession rules in the Land Registration Act 1925 and the Limitation Act 1980 did breach a true owner's rights to peaceful enjoyment of his possessions in that he was deprived of his possessions in a manner which was not in the public interest and was not proportionate. The provisions of the Limitation Act imposed upon Pye an excessive burden and upset the fine balance between the demands of the public interest on the one hand and the company's right to the peaceful enjoyment of its possession on the other. The taking of property without payment of compensation related to its value was only justified in exceptional circumstances. Such circumstances were not present in this case.

What implications does this decision have for the future of the law relating to adverse possession? After the implementation of the Land Registration Act 2002, the law was changed in relation to adverse possession affecting registered land. Under the 2002 Act the Limitation Act does not apply to registered land. Instead, an owner may apply for registration after 10 years' adverse possession but the Land Registry is required to notify the owner and any chargee of the application both of whom may oppose the application. Would this procedure be compatible with the Human Rights legislation? It is not certain whether the new procedure complies with the European Convention on Human Rights although the European Court paid particular weight to the changes in the 2002 Act, and saw it as a recognition by parliament of deficiencies in the old law, when deciding that the old procedure did not provide a fair balance between public interest and an individual's right to peaceful possession.

Any outstanding claim relating to registered land where the 12 years expired before the 13th October 2003 will be doomed to failure due to this case. Any claim that has been upheld may be subject to a claim for compensation against the government. As the Pye decision involved specific reference to the Land Registration Act 1925 and the Limitation Act 1980 it may not immediately affect unregistered land; however, there is no reason why, if applied more broadly, its rationale should not equally apply to a claim made in respect of unregistered land.

It is also possible that attention may now be turned to claims for prescriptive easements. We should expect to see test cases looking at the effect of the Human Rights Act in any area where one party is deprived in some way of exercising his full rights of ownership due to the act of another. A fair balance between the interests of a landowner and public interest must be maintained.

This article was written for Law-Now, CMS Cameron McKenna's free online information service. To register for Law-Now, please go to

Law-Now information is for general purposes and guidance only. The information and opinions expressed in all Law-Now articles are not necessarily comprehensive and do not purport to give professional or legal advice. All Law-Now information relates to circumstances prevailing at the date of its original publication and may not have been updated to reflect subsequent developments.

The original publication date for this article was 22/11/2005.

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