Is possession still 9/10th of the law?
21/03/2011
We last looked at the issue of squatter’s rights in Summer 2007 (In Brief).
At that time we reported on a recent decision of the European Court of Human Rights in the case of J A Pye (Oxford) Limited –v- Graham. This case was an appeal from domestic courts in the UK which had found in favour of Graham who had claimed successfully to be entitled to lands owned by Pye by virtue of the Doctrine of Adverse Possession, that is to say Graham had remained in undisputed occupation of Pye’s land for a period in excess of twelve years and by virtue of this had dispossessed Pye of its paper title to the lands. The European Court of Human Rights in November 2005 reversed the UK Court’s decision and found in favour of Pye insofar as it agreed that the operation of the Law of Adverse Possession amounted to a deprivation of possessions within the scope of Rule Two of Article One of the First Protocol to The European Convention on Human Rights. This decision left the UK Government potentially open to a substantial claim for compensation by Pye due to loss of development value.
The UK Government appealed to the Grand Chamber of European Court of Human Rights which in November 2007 overturned the decision of the Lower Chamber and found that the dispossession of Pye’s title was not a breach of Article One of the First Protocol. The Grand Chamber concluded that the Doctrine of Adverse Possession operated simply to “control the use” of land and, as such, did so effectively. The extinguishment of paper title by virtue of Adverse Possession was doing little more than regularising the position that had been established under the twelve year rule laid down by UK Limitation Acts (In Northern Ireland “The Limitation Order (NI) 1989”). This decision advanced the view that the European Convention no longer acts as the framework for analysis and judgement in matters concerning the Doctrine of Adverse Possession and that our domestic laws would apply.
The position in England has been strengthened by the Land Registration Act of 2002. However, such legislation does not apply in Northern Ireland and until similar legislation is introduced, we are left having to interpret the Law of Adverse Possession in accordance with our established case law where the old saying that “Possession is nine tenths of the Law” will still ring true.
So, if you are a landowner, know your occupiers. If your land is let to or occupied by others it is important that you are sure of the basis of their occupation. Make sure that any leases or licences are kept up to date and ensure that rents are collected to prevent tenants claiming possession in the future. Regularly inspect and survey your land and your boundaries to ensure there are no squatters either obviously occupying or encroaching on the boundaries of your land and seek legal advice promptly if you discover or suspect that anyone is occupying or encroaching on your land.
Should you require further information on the issues raised in this article, please contact James on 028 9055 3357, by email james.mcmullan@tughans.com or for more information on our Private Client services click here.