Adverse possession

Citation

Waterson, G. and Lee, R. (2001), "Adverse possession", Property Management, Vol. 19 No. 4. https://doi.org/10.1108/pm.2001.11319dab.004

Adverse possession

Adverse possession

JA Pye (Oxford) Ltd and another v. Graham and another [2001] 18 EG 176 CA

This case concerned a successful claim by a farmer to have gained possession of some 23ha. of land by adverse possession following his continued occupation of the land after the expiration of a series of grazing licences. The land in question had been retained by the claimant when he sold off a farm in the hope that he would gain planning permission for its development. In the meantime, from 1977 to 1983, he granted a series of grazing licences to the defendant owners of the farm. However, the grant of grazing licences had ceased in 1984 because the claimant had feared that they might impede the granting of planning permission. The defendants had at first sought the grant of a new grazing licence, but when this had been unsuccessful they had simply continued to use the land as they had always done in the hope that they would be granted a new licence.

The trial judge had concluded that the Grahams had been in adverse possession of the land and this question was at the heart of the appeal. However, a further point was raised on appeal that had not been put before the trial judge, that is whether the Human Rights Act 1998 had any impact on the case. The Human Rights Act had only come into effect after the original trial.

On the question of adverse possession the claimant was successful. Mummery J. concluded that to establish adverse possession a squatter must demonstrate both factual possession of the land and an intention to possess it. There was no doubt that the defendants had enjoyed possession of the land but on the evidence of Mr Graham it was clear that the defendants had intended to continue to use the land in exactly the same way as before the expiration of the grazing licences in the hope that a fresh licence would at some time be granted. This, the court felt, was not sufficient to justify the inference of an intention to possess, especially as in the present case where it was known that the owner had in mind some future use for the land. In such a case the court will require very clear evidence of the squatter's intention. Thus there was no adverse possession.

The claimant had argued that to be dispossessed of the land after a period of 12 years amounted to a breach of their right to protection of their property as guaranteed under Article 1 of the first protocol of the European Convention on Human Rights and now protected by the Human Rights Act 1998. However, their Lordships disagreed, Keene L.J. stating "… the arguments based on the Human Rights Act add very little, if anything" as the extinction of the claimant's title where legal proceedings had been delayed for 12 years is not a deprivation of possessions or a matter of confiscation. It is simply the pragmatic consequence of barring claims after the expiry of a limitation period and the notion of limitation periods is one recognised by the Convention itself. Furthermore, the 12-year period in the 1980 Act could be justified "in the public interest" within the meaning of Article 1. Thus the claimant failed on the human rights issue.

The case therefore confirms that adverse possession is not incompatible with the Human Rights Act. It also illustrates to developers the importance of supervising their holdings adequately in order to avoid potential adverse possession claims.