Analysis of the Illegal Storage - Case Study Example

Adverse Possession Introduction: The leading case on adverse possession is that of J.A. Pye (Oxford) Ltd v Graham In this case, the Grahams occupied fields that were owned by Pye, but to which they had been granted a grazing right that expired in 1984, which had never been renewed. Since Pye showed no further interest in the property, the Grahams continued to graze the land and claimed their rights over the land by virtue of their long undisputed possession. However, a challenge has been posed to the concept of adverse possession, when Pye was granted unanimous permission by the European Convention of Human Rights on 8th June 2004 to do so on grounds of incompatibility with Article 1 of Protocol No: 1 to the ECHR2. This Protocol 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.”3 Recent legislation such as the Land registration Act of 2002 has also brought about significant changes to legislate against squatters, by clarifying that no matter how long the land has been adversely possessed, it will not bar the paper owner’s title to the registered land.4 Moreover, the negation of overriding interests under the Land Registration Act of 2002 also provide an indication that the new legislative provisions are averse to adverse possession, largely due to the need to protect the needs of the owners. However, public interests could sometimes favor adverse possession. Adverse possession: Pre conditions to invoke such impregnable possession included physical occupation of the property5. As stated in the case of Powell v McFarlane, “Factual possession signifies an appropriate degree of physical control…….. ……broadly, I think what must be shown as constituting factual possession is that the alleged possessor has been dealing with the land as an occupying owner might have been expected to deal with it and that no-one else has done so.”6 Another condition that may invoke such possession right includes an intention to possess the land7 without the consent of the actual owner8. One of the salient points noted by Browne Wilkinson in allowing the judgment for the defendant in the case of Pye was the issue of whether the defendant squatter had “dispossessed the paper owner by going into ordinary possession of the land for the requisite period without the consent of the owner.”9 On the basis of earlier legislative provisions, such as the Limitation Act of 198010 those who had been in adverse possession of land for a period of twelve years had the right to apply for the title of the land with no action possible against them by the actual owners, as per Section 15(1) of the Limitation Act of 1980. As a result, this subordinated the rights of the actual paper title owner, giving the squatter “a title superior to all others.”11 However, with the revised position of Parliament and the Law Commission as reflected in the Land Registration Act of 2002, as well as the decision of the European Court of Human Rights, the existing principle on adverse possession is under attack. However, what needs to be noted in this context is the fact that the rights of those in possession of land for long periods are now being undermined. The old law was geared towards providing the right of title to those who openly possessed the land and against whom the paper owners has not bothered to take any action. In some instances where the owners may not bother to maintain or attend to the upkeep of the property, it would be in the larger public interest to ensure that the land title is provided to those adversely possessing it, who are doing all the work of maintenance and upkeep. For example, in the case of Topplan estates Limited v Townley12, the Court held in favor of the defendant and stated that the law of adverse possession was justified when the paper owner made no effort to oversee the property. This was also the case in Purbrick v Hackney where Neuberger J stated that “A period of 12 years is a long period during which to neglect a property completely.”13 On the one hand is the issue of the squatters who have maintained full possession of the land without the owner’s consent with the intention to hold on to the land14. The issue of neglect of a property owner is a vital one in allowing adverse possession to accrue to those who are able to prove the owner’s eschewing of his rights to his land.15 Those who have thus gained title through adverse possession will be entitled to retain their possession. Moreover, one important aspect that must be noted is that adverse possession is not of itself adequate to ensure ownership of land, rather the squatter should have done work on the land and maintained it in the manner a true owner of the property would, thereby earning the right to the title. However, compulsory registration under the Land Act of 2002 has made it more difficult than ever for unlawful occupiers to be able to obtain possession of title to the property. Conclusion: As may be noted in the case of Pye16 the position of the Government was that the reality of unopposed occupation of land leads to an inference of legal ownership. On this basis therefore, there arises a legitimate public interest in maintaining adverse possession, since the alternative is costly litigation in the Court over age old claims that could drag on for ever. However, the position of the Law Commission and the verdict in this case have eschewed the earlier legal position of favoring squatters and now favor landowners. This could potentially result in owners taking advantage of the stricter requirements to also prevent public use of easements to appurtenant land. As pointed out by Potter, the impact of the Human Rights Act in terms of preventing a landowner from exercising his full rights could mean that prescriptive easements could be the next under attack17, thereby severely undermining the public interest and the rights of the public to the use of easements, which could also include roads through private property. On this basis, it must therefore be concluded that the revised position of the Government and the EU does not appear to take into account the significant public interests in favor of adverse possession. Bibliography * Adverse Possession: Land Registry Act of 2002.” [Online] Available at: http://www.landregistry.gov.uk/assets/library/documents/fact_sheet002.pdf at Sections 96-97 * “Limitation Act of 1980” [Online] Available at: http://www.swarb.co.uk/acts/1980LimitationAct.shtml * Potter, Caroline, 2005. “United Kingdom: Acquiring title by adverse possession in breach of human rights.” [online] available at: http://www.mondaq.com/article.asp?articleid=36268&hotopic=1 Cases cited: * Buckinghamshire County Council v Moran [1990] Ch 623, 635, CA). * JA Pye (Oxford) Ltd v Graham [2002] UKHL 30 [2003] 1 AC * J A Pye (Oxford) Ltd and J A Pye (Oxford) Land Ltd v UK (2004, ECHR App no 44302/02) * Neuberger J in Purbrick v. Hackney LBC [2004] 1 P & CR 553 at 560 * Powell v McFarlane (1977) 38 P&CR 452 * Topplan estates Limited v Townley, 2004] EWCA Civ 1369 Read More