UK: Adverse Possession

A recent decision of the Chancery Division of the High Court¹ may have a profound effect on the law relating to claims for adverse possession of land, more commonly known as "squatters’ rights". The judgment is being appealed, but pending the outcome of the appeal, landowners should think twice before conceding claims made by squatters.

The Claimant company was the owner of an area of green belt land near Heathrow Airport. It commenced proceedings seeking an Injunction restraining the Defendant from entering onto or using its land. The Defendant alleged he had acquired adverse title to the land because he had enclosed it and allowed his horses and cattle to graze there from October 1986 until October 1998. He further stated that he had charged other people to graze their horses on the land. It was the Claimant’s case that the Defendant had not proved his claim for adverse possession because he had made no substantial use of the land for grazing horses until the beginning of 2003. In the alternative, the Claimant contended that even if the Defendant had enjoyed exclusive possession of the land from October 1986, the relevant time for the claim to begin would not have commenced until the end of June 1991, in which case the 12 year period would have ended in June 2003. The Claimant relied on the provisions of the Human Rights Act 1998 which came into force on 2 October 2000.

Amongst other arguments, the Claimant alleged that the effect of section 75 of the Land Registration Act 1925, together with the relevant provisions of the Limitation Act 1980, was to deprive it of its property without compensation, contrary to Article 1 of the First Protocol to the European Convention on Human Rights. The Claimant argued that consequently, the Court was obliged by Section 3 of the Human Rights Act to read and give effect to the two other statutes so as to render them compatible with the European Convention on Human Rights, if possible.

The Court ruled that the taking of property without consideration was normally a disproportionate interference which would be unjustifiable under Article 1 of the First Protocol to the European Convention. It decided that the expropriation of registered land without compensation to the owner in the circumstances of the case did not advance any of the aims of the statutory provisions and was disproportionate. The Court decided that it was not justified by a requirement to have a uniform rule in relation to adverse possession applicable across the board. In this case, the registered owner lost his land due to a failure to take steps to get rid of a trespasser within a 12 year period. However, the acts of trespass were not obvious, but could not be described as trivial and harmless. Further, the owner might not know the law and might not realise that failure to put an end to occupation by a trespasser might prejudice his position. However, the trespasser would usually be aware that he was trespassing, he would already have benefited from the acts of trespass and would have done nothing in consideration of the value of the property.

The Court found that on the evidence, 12 years adverse possession had been completed at the end of June 2003. However, the Claimant’s loss of the disputed land in accordance with the provisions of the Land Registration Act 1925 was not compatible with Article 1 of the First Protocol. The Court declared that the Claimant remained the owner of the disputed land as a result of a reinterpretation of the relevant legislation pursuant to Section 3 of the 1998 Act.

The Land Registry has issued new practice guidance in the light of the decision in this case. It has been a prompt reaction and emphasises the importance of the decision. Now, where an application is made for adverse possession and registration of possessory title pursuant to the Land Registration Act 2002, and the necessary period of adverse possession started after 2 October 1988, the Applicant must show an arguable case for the possession being inconsistent with the use or intended use of the land by the registered proprietor and not merely that the possession was without the registered proprietor’s consent.

In a more recent case², the High Court decided that a person who was in factual possession and who intended to remain in possession only so long as the true owner continued to permit this, did not have the necessary intention to possess for the purpose of starting a period of limitation running in his or her favour.

As a result of the Beaulane case the current legal position will remain uncertain until the appeal has been determined. Pending a definitive outcome, many Judges are staying proceedings with similar facts and issues.