Friday, January 6, 2006
At today's Property Section panel at the AALS (which I'll discuss in more detail in a later post), Nicole Garnett mentioned in passing a European Court of Human Rights case that held that an application of England's adverse possession law amounted to an unlawful taking of property. The ECHR's press release for the case, J.A. Pye (Oxford) Ltd v. The United Kingdom, says in part:
The Court found that the combined effect of the 1980 and 1925 Acts was both to deprive the applicants of their substantive property rights and to preclude them from lawfully repossessing the land, the beneficial title to which they had lost.
The Court accepted that it was the Grahams' adverse possession of the land for 12 years which directly led to the applicants' loss of their title. However, the Court also observed that, but for the provisions of the 1925 and 1980 Acts, the adverse possession of the land by the Grahams would have had no effect on the applicants' title or on their ability to repossess the land at any stage. It was the legislative provisions alone which deprived the applicants of their title and transferred the beneficial ownership to the Grahams. The Court accordingly found that the operation of the relevant provisions of the two Acts constituted an interference by the United Kingdom with the applicant companies' rights under Article 1 of Protocol No. 1.
The Court took the view that, with one or two limited exceptions, the uncertainties which sometimes arose in relation to the ownership of land were very unlikely to arise in the context of a system of land ownership involving compulsory registration (as in the applicants' case), where the owner of the land was readily identifiable. In the days before registration became the norm, a result whereby an adverse possessor of land was rewarded by obtaining title could be justified as avoiding protracted uncertainty as to where the title to land lay; where land was registered, it was difficult to see any justification for a legal rule which led to such an unjust result.
The Court further took note that many common law jurisdictions which had systems of title registration had either abolished the doctrine of adverse possession completely or had substantially restricted its effects.
However, despite the major changes to the law of adverse possession made by the Act of 2002, in the case of registered land, the law itself was not abolished. The Court, therefore, could not accept that the law of adverse possession in England and Wales served no continuing public interest so far as registered land was concerned.
The Court accepted that the limitation period of 12 years was relatively long and that the law of adverse possession was well-established and had not altered during the period of the applicants' ownership of the land. It was further accepted that, in order to avoid losing their title, the applicants had to do no more than regularise the Grahams' occupation of the land or issue proceedings to recover its possession within the 12-year period. The question nevertheless remained whether, even having regard to the lack of care on the part of the applicants and their advisers, the deprivation of their title to the registered land and the transfer of beneficial ownership to those in unauthorised possession struck a fair balance with any legitimate public interest served.
The Court noted that not only were the applicants deprived of their property, they received no compensation for the loss. The result for them was therefore one of exceptional severity.
The Court reiterated that the taking of property in the public interest without payment of compensation reasonably related to its value was justified only in exceptional circumstances.
The lack of compensation in the applicants' case had to be viewed in the light of the lack of adequate procedural protection for the right of property within the legal system in force at the relevant time. In particular, although it was open to the dispossessed owner of the land to argue after the expiry of the 12-year period that the land had not been adversely possessed, during that period, no form of notification whatever was required to be given to the owner, which might have alerted him to the risk of losing his title.
The United Kingdom Government argued that the State had no duty to protect a person against his own negligence. However, the Court observed that such negligence would have had no adverse consequences for the applicants but for the contested statutory provisions. More importantly, it was clear that Parliament itself recognised the deficiencies in the procedural protection of landowners under the then current system by enacting the Act of 2002. The new Act not only put the burden on a squatter to give formal notice of his wish to apply to be registered as the owner after 10 years adverse possession but required special reasons to be given to entitle him to acquire the property where the legal owner opposed the application.
The mere fact that a legal system was changed, to improve the protection provided under the Convention to an individual, did not necessarily mean that the previous system was inconsistent with the Convention. However, in judging the proportionality of the system as applied in the applicants' case, the Court attached particular weight, among other things, to the changes made in that system.
The Court concluded that the application of the provisions of the 1925 and 1980 Acts to deprive the applicant companies of their title to the registered land imposed on them an individual and excessive burden and upset the fair balance between the demands of the public interest on the one hand and the applicants' right to the peaceful enjoyment of their possessions on the other. There had therefore been a violation of Article 1 of Protocol No. 1.
The House of Lords opinion that was appealed to the ECHR is available here. I know next to nothing about European Human Rights law, but this result seems bizarre to me. Informed (and uninformed) comments are welcome. Also, there was some good discussion about a month ago on PrawfsBlawg on whether a similar claim would work in the U.S. -- I'm not sure how I missed it at the time.
[Comments are held for approval, so there will be some delay in posting]