The Convention states: “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
“The preceding provisions shall not, however, in any way impair the right of a state to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”
The facts of the case, JA Pye (
Pye took the case to the European Court of Human Rights, arguing that the deprivation of property without compensation was in breach of their article one rights, and in November 2005 the
In the case of registered land the Land Registration Act 2002 has altered the rules on adverse possession, but the old rule, applied in Pye, remains in effect for unregistered land. The Grand Chamber judgment, however, is relevant to the new registered land adverse possession rules as well as the old unregistered land rules, because the basic question raised was whether it is in breach of article one to have a legal principle by which landowners can be deprived of ownership without compensation by the adverse possession of that land by another.
The Grand Chamber’s general considerations included that there must be proportionality in a domestic state’s laws between the aims of legislation and the means employed, and that legitimate objectives of public interest could call for less than the reimbursement of full market value (Papachelas v
The Chamber decided that the Limitation Act 1980 was not intended to deprive paper owners of ownership, but rather to regulate questions of title, and therefore the first paragraph of article one (quoted earlier) was not engaged: Pye was not “deprived of possession”, but instead the Chamber considered the relevant law came under the second paragraph, and was a provision to “control the use of property”.
It observed that interferences with possessions under the second paragraph are permissible, but there must “exist a reasonable relationship of proportionality between the means employed and the aim sought to be realised”.
The Chamber endorsed the general view on
The 12-year limitation period for actions for recovery of land is part of the general land law in the context of regulating the use and ownership of land as between individuals, leading to the conclusion that this was not a case of ‘deprivation of possessions’ but rather a provision enabling the ‘control of use’ of land under the second paragraph of article one.
This decision scuppered any chance Pye had of compensation. Since the Chamber found that the interference was a control of use, rather than a deprivation of possessions, the law on compensation for deprivations was not directly applicable. The next question for the Chamber was whether English law on adverse possession was reasonably proportionate.
The Chamber noted that the law was long-established, and the limitation period was relatively long. It concluded that English law on adverse possession, as a control on the use of land — a scarce resource — was proportionate.
The case is interesting because the Chamber took a fairly legalistic approach to the problem, making an important distinction between the paragraphs of article one and the latitude a domestic state is allowed in framing its own laws. Specifically, “states enjoy a wide margin of appreciation with regards both to choosing the means of enforcement and to ascertaining whether the consequences of enforcement are justified in the general interest for the purpose of achieving the object of the law in question”.
The reasoning is equally applicable to the Land Registration Act 2002, and to English law on limitation generally. It is also interesting that one of the reasons for the change made by the Land Registration Act 2002 was a concern about article one, and in this context it is noteworthy that the Grand Chamber has taken a more robust view than seems to have been adopted by the UK Government in framing the Land Registration Act 2002.
Simon Cockshutt is a partner at Orrick Herrington & Sutcliffe in
