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Property Law - The final nail in the adverse possession coffin?

By : Steven Woolf

Not Really says Steven Woolf (counsel for Mr Palmer)

There can be no doubt that following the introduction of the Land Registration Act 2002, adversely possessing a plot of land will become a thing of the past. Under Schedule 6 to the Act there are only three grounds that can be argued in opposition to the true owner’s objections and of those only boundary disputes are likely to come before the court on a regular basis.

However, it should not be thought that the decision in Beaulane Properties -v- Palmer, whereby Nicholas Strauss QC sitting as a Deputy High Court Judge determined that the loss by Beaulane Properties of the disputed land in accordance with Section 75 of the Land registration Act 1925 was incompatible with Article 1 of the First Protocol of the Human Rights Act, necessarily makes it any less likely that a squatter can obtain land by adverse possession.

The simple point is that to fall foul of the Beaulane principles, a squatter will have to fall within the same restricted time-frame as Mr Palmer. The Human Rights Act only bit on Mr Palmer’s claim because his 12 year user did not end until after 2 October 2000. Had Mr Palmer been in control of the land to the exclusion of the true owner for 12 years prior to 2 October 2000, he would have acquired title by adverse possession and that would have been the end of the matter. The issue of law that took two days to argue, involving numerous authorities and pages of written submissions would not even have been mentioned, let alone comprehensively debated.

It follows therefore that the decision in Beaulane Properties should trouble judges only if the relevant 12 year period is only established post October 2000.

Having said that, even if a case appears to fall within the relevant time periods, practitioners should not feel obliged to follow Beaulane. It seems to me that there are two possible bases upon which an argument can be pursued in an attempt to discourage a judge from blindly following Beaulane.

First, the decision in Beaulane may be appealed. As matters presently stand permission to appeal has been adjourned pending the European Court of Justice’s decision in Pye -v- United Kingdom (Application No. 44302/02) which is expected very shortly (within a matter of weeks). Many of the arguments raised before Mr Strauss QC were argued before the European Court. If the European Court finds in favour of the United Kingdom and declares that adverse possession does not offend Article 1, it is anticipated that Beaulane Properties will recognise that opposing an appeal would be foolish.

Secondly, questions can be raised as to the binding effect of the decision of Mr Strauss QC in any event. Unlike decisions of the Court of Appeal, decisions of a judge at first instance do not have automatically binding effect. That is not to say such decisions can be routinely ignored. On the contrary, a County Court or High Court judge would in most cases choose to adopt the decision of a judge at the same level, unless the decision appeared to be clearly wrong (see R v Greater Manchester Coroner, ex parte Tal & Another [1985] QB 67). However, it is certainly worth practitioners seeking to persuade that as a High Court decision at first instance, the principle of stare decisis (i.e. to stand by decided matters) does not apply.

A decision as to whether Mr Palmer will seek permission to appeal will be made as soon as the European Court’s decision is handed down. Readers of this Newsletter will be amongst the first to know.