Get Off My Land! Dealing with squatters? rights - Spring 2006

01 April 2006

Many people will be familiar with the rule in property law that if you allow a third party to remain on your land without permission for twelve years or more then that third party may become entitled to claim a possessory title. This is because under the Limitation Act 1980 (and previous acts) any claim for possession must normally be brought within twelve years of the claim arising. The third party has to occupy the land exclusively and in such a manner as is adverse to the interests of the true owner. It was thought in addition the third party had to have an intention to adversely occupy the land (for example it should not be prepared to pay rent or a licence fee for the continued occupation).

This was the case in Pye (Oxford) Limited -v- Graham. G had originally been given a grazing licence by P. However, once the licence had expired P took no steps to get G off the land and G continued to occupy the land for over twelve years. When P sought possession G argued that it now had title by adverse possession. G failed in the Court of Appeal. However, the House of Lords held that, although G had admitted that he would have paid a rent for the field, the actual fact of his twelve year possession demonstrated sufficient physical control of the land as if it were his own. That was sufficient intention, irrespective of what he might have agreed to offer.

Such a ruling has perhaps opened up a wider area of claims. But P was not finished. What about its Human Rights? Although the case was about a dispute before the Human Rights Act 1998 came into force, P took the United Kingdom government to the European Court of Human Rights. It argued that rights of adverse possession and the Limitation Act 1980 breached its rights of peaceful enjoyment of its possessions in a manner that was not proportionate or had a public interest exception. Furthermore, there was no compensation payable for the loss of the land which (in this case) had valuable development potential. The European Court agreed! So P has a claim for compensation against the government and is seeking £10 million although the courts has reserved the issue of damages. This case may have a limited application. Since 2003 the new Land Registration Act 2002 has provided that if a squatter on registered land claims adverse possession then the Land Registry must give notice to the registered proprietor who then has a limited, but significant period in which to rebut the claim. So the original procedural deficiencies may have been corrected in order to restore the balance in favour of the land owner.

However, much land is still unregistered so no notice is required to be given in any such application. The landowner may well be able to argue that his rights have been violated if deprived of its unregistered paper title by a third party. Furthermore the European Court did not specifically state that the new procedures after the 2002 Act are sufficient to restore the balance between private rights of ownership and a public right to ensure that limitation rules are applied so that land does not lie fallow thus wasting valuable resources.

So if you are faced with a claim for adverse possession, act swiftly to protect your position and do not be afraid to fight your corner.

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