Conveyancer and Property Lawyer. 2008. Case Comment. Human rights and adverse possession: the final nail? Martin Dixon. Subject: Real property.
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Conveyancer and Property Lawyer 2008
Case Comment Human rights and adverse possession: the final nail? Martin Dixon Subject: Real property. Other related subjects: Human rights Keywords: Adverse possession; Peaceful enjoyment of possessions; Protection of property; Registered land Cases: Beaulane Properties Ltd v Palmer [2005] EWHC 817 (Ch); [2006] Ch. 79 (Ch D) JA Pye (Oxford) Ltd v Graham [2002] UKHL 30; [2003] 1 A.C. 419 (HL) Ofulue v Bossert [2008] EWCA Civ 7; [2009] Ch. 1 (CA (Civ Div)) Pye (JA) Oxford Estates Ltd v United Kingdom (44302/02) [2008] 1 E.H.R.L.R. 132 (ECHR (Grand Chamber)) *CONVPL 160 An earlier note in this journal1 considered the impact of the ruling of the Grand Chamber of the European Court of Human Rights in the now infamous JA Pye (Oxford) Ltd v United Kingdom. 2 That decision brought to an end a long saga that had already passed through the House of Lords four years before the inevitable journey's end at Strasbourg.3 However, while the decision in Pye v United Kingdom brought finality for the parties, there was a lingering doubt that it had not finally resolved the question of the compatibility of adverse possession with principles of human rights as a matter of English law. This lingering doubt--which your Editor argued was wholly without substance--drew strength from Practice Guidance issued by the Land Registry4 which required an adverse possessor to establish5 a degree of possession of the registered title that was inconsistent with the use or intended use of the land by the registered proprietor. This formulation apparently was required by Beaulane Properties Ltd v Palmer 6 which had decided that loss of title through adverse possession could be squared with human rights principles only by reinterpreting the meaning of “possession” in this fashion. This was despite the fact that the House of Lords in Pye v Graham had earlier described the Beaulane approach as a heresy7 *CONVPL 161 and despite the ruling in Pye v United Kingdom itself. This reliance on Beaulane --because it was the only specific English authority--led the Land Registry to state, rather surprisingly, that Pye v United Kingdom “does not affect domestic case law”.8 In Ofulue v Bossert, the Court of Appeal had to consider a case of adverse possession of a registered title completed before the entry into force of the Land Registration Act 2002--just like Pye v Graham and Beaulane v Palmer. 9 Apart from relatively routine issues concerning questions of intention and acknowledgment of title, the existing registered proprietor also argued that Pye v United Kingdom had not decided finally that principles of adverse possession were always compatible with the Convention. Indeed, although the case does not raise directly the Beaulane question, the Court of Appeal's analysis effectively settles for good both the primary question of compatibility with the Convention and the secondary question of how adverse possession is to be established in English law under a human rights regime (the Beaulane question).10 Mr Ofulue had become the registered proprietor of the property in 1976 and had moved to Nigeria shortly afterwards. The property had been let to tenants, but in 1981 Ms Bossert and her father were let into the property by a former tenant and they had remained there ever since, Ms Bossert taking on the property when her father died in 1996. Mr Ofulue had visited the property during the intervening years and some negotiations for the grant of a lease had taken place. These came to nothing and earlier possession proceedings had been initiated but never continued. Meanwhile, the Bosserts had improved the property by repairs and renovations. Mr Ofulue now sought possession again and Ms Bossert asserted title by adverse possession. The trial judge found for Ms Bossert and the Court of Appeal upheld his decision.
Adverse possession and human rights
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It is of course accurate that a decision of the European Court at Strasbourg on a matter of human rights--even on the question *CONVPL 162 of compatibility of domestic law with the Convention--does not bind an English court as a strict matter of law.11 In this bald, and thoroughly unhelpful sense, it is true that Pye v United Kingdom “does not affect domestic case law”.12 In Ofulue, this literal truth manifested itself in two ways and led the Court of Appeal to consider first whether Pye v United Kingdom should be followed and, secondly, even if it should, whether it in fact decided that adverse possession principles as applied under the Land Registration Act 1925 were, per se, compatible with the Convention. First, the Court of Appeal in Ofulue made it clear that every court should follow Pye v United Kingdom (and other Strasbourg decisions that affect domestic law) unless there were very good reasons for not doing so. This might be where the Strasbourg Court had misunderstood domestic law, or domestic law caused for the exercise of a discretion13 and, we might add, where there is a contrary House of Lords decision.14 Otherwise, s.2 of the Human Rights Act 1998, as applied by the House of Lords,15 made it clear that English courts should not depart from Strasbourg on human rights matters. Thus, it was not possible to treat Pye v United Kingdom as inapplicable to adverse possession claims--a point surely of significance for the Land Registry. Secondly, and more interestingly, counsel for Mr Ofulue argued that Pye v United Kingdom did not decide that every case of adverse possession under the Land Registration Act 1925 (assuming it was established under domestic law) was human rights compliant because “the margin of appreciation” enjoyed by each state in human rights matters meant that each case must be considered individually, by reference to the criteria for compliance decided at Strasbourg. Of course, if true, this approach to human rights compliance reduces considerably the impact of a Strasbourg decision that domestic law complies with the Convention. In the case of adverse possession, it would mean that Pye v United Kingdom had decided simply that the concept of adverse possession and the UK legislative scheme were in principle human rights compliant, but that a domestic judge would have to consider in each case whether the facts of the immediate dispute warranted application *CONVPL 163 of the Strasbourg ruling of compliance, based on the reasons it gave for such compliance. In essence, it was a subtle way of reintroducing the argument rejected by the House of Lords in Qazi v Harrow LBC 16 and Kay v Lambeth LBC as to the proper role of human rights in property disputes.17 Happily, the Court of Appeal rejected this argument robustly, noting that “this approach fundamentally misunderstands the purpose of the doctrine of the margin of appreciation”.18 As Arden L.J. explained, the Grand Chamber: “[A]ccepted that the national authorities could in general determine the rules for the extinction of title as a result of the occupation of the land … That determination applies to all decisions on adverse possession and it is not open to this court not to follow that determination because the case is distinguishable on the facts.”19 Likewise with the tests of proportionality and legitimate aim within Art.1 Protocol 1 to the Convention (the Article at issue in Pye and in this case), for these matters also had been settled by the Strasbourg Court for claims under the Limitation Act 1980 as it applied to registered land governed by the Land Registration Act 1925.20 Thus, it was not open to a litigant to challenge them in every individual dispute that might follow thereafter. Apart from the fact that both Qazi and Kay had already rejected similar arguments about the effect of human rights decisions on property disputes--or arguments having a similar effect--this interpretation of the purpose of the “margin of appreciation” rests on solid foundations.21 The doctrine is deigned to ensure that national systems implement and interpret human rights principles in a manner which is consistent with the Convention, bearing in mind local socio-economic, political and ethical conditions. It is not meant to operate in the converse way: to give individuals the ability to re-test every human rights decision because of the flexibility enjoyed by domestic courts. Consequently, it was clear that the Court of Appeal could not depart from Pye v United Kingdom and that there was no prospect of Mr Ofulue *CONVPL 164 pleading that his loss of title involved a violation of human rights. Let us hope now, finally, that this is the last we hear of this. For those that needed it, there is Court of Appeal authority in point.
The meaning of adverse possession The secondary question addressed obliquely by this case is whether, as a matter of domestic law, adverse possession is established only when the claimant's possession was inconsistent with the use or intended use of the land by the registered proprietor (Beaulane ) or whether the principles set forth in Pye v Graham applied. As will be remembered, the judge in Beaulane felt able to depart from Pye v
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Graham because of human rights considerations, and it was argued in this journal that one effect of Pye v United Kingdom was that it was not only safe, but obligatory, to return to the House of Lords approach in Graham and to depart from Beaulane. In Ofulue, counsel for Ms Bossert made “lengthy submissions” that Beaulane could not withstand Pye v United Kingdom. 22 Indeed, it is difficult to see how it could remain after Kay had explained that lower decisions (Beaulane ) had to follow higher decisions (Pye v Graham ) even if they appeared to be contrary to Strasbourg (which Graham was not--Pye !). However, Arden L.J. does not feel it necessary to dip into this issue, presumably because in deciding that Pye v United Kingdom settles the matter for the Court of Appeal, there can be no question of adverse possession violating human rights under Beaulane. Of course, this is tantamount to overruling Beaulane, and Arden L.J. notes, tantalisingly, that she has no need to consider Beaulane in the abstract because an application has been made in that case to appeal out of time. It is perhaps, also now time for the Land Registry to rescind its Guidance on this point. Ofulue v Bossert also raises other issues that are more or less uncontroversial. There is an argument that the Bosserts could not have had an intention to possess because they may have believed themselves to be tenants, but this argument falls in the face of Pye v Graham if the “tenants”23 had an intention to possess for their own benefit and they were not in fact tenants.24 Likewise, there was an interesting acknowledgement of title point, and while the *CONVPL 165 court accepted that a pleading and counterclaim in proceedings was capable of constituting such an acknowledgement, there was none in this case because the acknowledgement did not specifically refer to the “title” under dispute. Instead, the Bosserts had pleaded in relation to the claim for possession with which they were faced: they did not admit the title that Mr Ofulue claimed was the reason he was entitled to possession.25 It is, however, in respect of the human rights issues that Ofulue is of most interest. Here is final confirmation that adverse possession under the Land Registration Act 1925 does not contradict the European Convention on Human Rights. It means also that the Beaulane approach to proving adverse possession must now be cast aside and, just in case it was thought arguable, that adverse possession under the Land Registration Act 2002 and in respect of unregistered land are also human rights compliant. The human rights argument is over and the safest way to protect one's land against future adverse possession is to ensure that it is registered and to respond in a timely manner to notices sent by the Land Registry informing you that another person is applying to be registered as the owner of your land. Martin Dixon Conv. 2008, 2, 160-165
1.
[2007] 71 Conv. 552.
2.
23 B.H.R.C 405. See also [2008] P.L. 161; [2008] 1 E.H.R.L.R. 132.
3.
JA Pye (Oxford) Ltd v Graham [2003] 1 A.C. 419.
4.
Additional Practice Guide LRPG005 of September 14, 2007.
5.
In fact, to establish an arguable case.
6.
[2005] EWHC 817 (Ch).
7.
[2003] 1 A.C. 419 at 437. No issue of human rights compatibility arose in Pye v Graham as the dispute predated the entry into force of the Human Rights Act 1998. However, that did not relieve the judge in Beaulane of the duty to follow Pye, see Kay v Lambeth LBC [2006] 2 A.C. 465.
8.
Additional Practice Guide LRPG005 of September 14, 2007, p.1.
9.
Although, the Human Rights Act 1998 was in force only for the decision in Beaulane.
10.
See also Ashe v National Westminster Bank Plc [2008] EWCA Civ 55 where the Court of Appeal decided, in context of an action for possession by a mortgagee, that principles of adverse possession were governed by Pye v Graham.
11.
See the discussion in Kay v Lambeth LBC [2006] 2 A.C. 465 on how to approach apparent inconsistencies between Strasbourg and House of Lords' decisions.
12.
Land Registry Practice Guide, LRPG005, p.1.
13.
Ofulue at [32], per Arden L.J and see Belfast City Council v Miss Behavin’ Ltd (Northern Ireland) [2007] 1 W.L.R. 1420.
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Kay v Lambeth LBC [2006] 2 A.C. 465.
15.
See, e.g. R. (on the application of Ullah) v Special Adjudicator [2004] 2 A.C. 323.
16.
[2004] 1 A.C. 983.
17.
In these decisions, the House decided that, on matters of property law, provided that the legislative scheme and the underlying domestic law was itself human rights compliant, it was not open to a litigant to plead a human rights violation based on his individual circumstances. Thus possession proceedings could not be challenged on human rights grounds once it had been decided that the legislative scheme was compliant.
18.
At [52], per Arden L.J.
19.
At [52], per Arden L.J.
20.
At [53].
21.
R. v DPP Ex p. Kebilene [2000] 2 A.C. 326.
22.
At [54].
23.
It is not clear on the evidence that they did so believe.
24.
See also Wretham v Ross [2005] N.P.C. 87, but see apparently contra Clowes Developments (UK) Ltd v Walters [2005] 17 E.G. 123 (C.S.).
25.
Another alleged acknowledgment could not be pleased be cause it had been made “without prejudice” and none of the exceptions to that doctrine applied, at [84]. © 2013 Sweet & Maxwell and its Contributors
