Introduction to Property Law:

Coursework Assignment
Mon, 11 July, 2011

Word count - 2380

1 (a) With regards to the European Court of Human Rights decision in J.A. Pye (Oxford) Ltd v. The United Kingdom (Application No. 44302/02) 30 August 2007, and the Court of Appeals decision in Emmanuel Ofolue v. Erica Bossert [2008] EWCA Civ 7; discuss the extent to which the provisions of the European Conventions on Human Rights and the Human Rights Act 1998, have impacted the doctrine of adverse possession in England & Wales.

I will discuss the cases and the impact which the HRA 1998 and the ECHR have had on the decision making process within the courts with regards to the doctrine of, “adverse possession”, in the UK.

Rationale of Adverse Possession in England and Wales.

The rationale of adverse possession in England and Wales is that;

i. There must be a demarcation in reality on the recognition of claims of ownership of property title. ii. As land is finite and therefore a precious commodity then it should be used to its full potential.

The common-law doctrine of adverse possession, gave rise to the ease of appropriation of land ownership by squatters/trespassers.
In J.A Pye v Graham, Pye were dispossessed of their title to land via a HOL/Supreme court decision, Pye v Graham [2002] UKHL 30, based upon the legislation within LR Act 1925 and Limitations Act 1980. In particular section 75 of LR Act 1925 transferred the title of land to the factual possessor, (Graham) .

In J.A. Pye (Oxford) Ltd v. The United Kingdom (Application No. 44302/02) 30 August 2007, Pye didn’t seek the recovery of the lost land but sought compensation from the UK government for lack of procedural protection which subsequently led to the loss of their property.
Mummery LJ stated in the Appeal, Pye v Graham [2002] UKHL 30, that the extinction of the applicant's title (under s.75) was a logical and simple means of the barring of an owner's right to bring an action (under s.15). However ….it is clear that the relevant provisions did more than merely preclude the applicants from invoking the assistance of the court to recover possession of the property concerned: the combined effect of the provisions 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".
This is an interpretation of events which shows that the applicants rights under art..1 of Protocol 1 of the ECHR have been violated .
The European court take the position in majority that the second paragraph of protocol 1 is pertinent and base their decision on the applicability of the, “ Control of the use of land” therein, but this seems to conflict with HRA 1998 section 3(1) “ so far as possible to do so, primary and subordinate legislation must be read and given effect in a way which is compatible with convention rights”.
If Pye where clearly deprived of their land then what relevance would the control of use of land have to their plea or how in any right minded persons view would this approach to a plea for compensation of loss be viewed in terms of the application of natural justice/fairness to Pye’s predicament.
As the end of the limitation period falls before the start of the HRA 1998 legislation coming into effect then it is decided that Pye is not protected under the art 1 protocol 1 but subject to the current legislation of LRA 1925 s75 and LA 1980 s15 and for this reason they are not entitled to compensation for their loss. If the reforms within the LRA 2002 Act where retrospective then Pye would have stood a good chance of claiming the market value of the transferred property however that is not the case.
The introduction of the HRA Act 1998 in 2000 into UK law was on the understanding that it superseded any current UK legislation. If this is the case then it defies logical reasoning that given the authority to supersede the LRA 1925, rather than to exercise that ability the judiciary would, it appears, with considerable bias, choose to adhere doggedly to the provisions therein and in doing so create a situation where natural justice seems dependent upon the termination of the period of limitation i.e. before 2000 compensation may be applied for, between 2000 and 2002 it will be refused as per the ruling in Pye and after 2002 it may be applied for successfully. If we add to this the nuances in what constitutes an intention to dispossess the registered proprietor of land or what constitutes an action to stop time running on an adverse possession claim, then the waters become very muddied.
The fact that Pye was allowed to apply for compensation by the HOL/supreme court and was then refused by European court had a huge impact on the ability of property owners to be relieved in the event of the loss of beneficial title through adverse possession

Emmanuel Ofolue v. Erica Bossert [2008] EWCA Civ 7,
The Bosserts paid no rent to the Offolues, however, according to the Offolues, they acknowledged their title to the property by forwarding letters offering to purchase. The Offolues asserted that this offer defacto showed the Bosserts recognition that they considered themselves tenants and such an acknowledgment would stop time running on a period of limitation. Unfortunately the letters were marked, “ without prejudice”, and as such were not admissible in court under the ordinary rules of evidence.
As per the inadmissible nature of the letters, Bossert had not acknowledged Offolue as the owner of the property and was in a stronger position of possession.
This is important because of s.29 (2) of the Limitation Act 1980:

(2) If the person in possession of the land . . . in question acknowledges the title of the person to whom the right of action has accrued -
(a) the right shall be treated as having accrued on and not before the date of the acknowledgement …
The Offolues claimed an infraction of their rights under article 1 protocol 1 of the ECHR, however it was found that this was not the case as , in Pye, the limitation period had elapsed as per the legislation in the Limitation Act 1980 and under the current law in the LRA s75 the title transfers to the factual possessor.
It would be correct to say that both Pye and Offolue sat on their rights to take an action against the squatting parties in possession of their respective properties and that both squatting parties fulfilled the necessary requirements under, Buckinghamshire county council v Moran [1990] ch 623 and Pye v Graham [2002] UKHL 30 in that they had,

i. The required degree of physical possession of land. ii. Animus possidendi – intention to possess to the exclusion of all others, including the paper owners.

As it was stated in Pye v Graham, graham did not need to show intention to own the property but merely an intention to possess and the same rule applies to Bossert.
The physical possession reinforces the intent, Prudential v Waterloo (1999) 17 E.G.131, the effect of which is that the owner on paper has his title extinguished, Colchester BC v Smith (1992) ch 421.
The decisions in Pye v UK (44302/02) have then directly affected the finding in
Emmanuel Ofolue v. Erica Bossert [2008] EWCA Civ 7 in as much as the Limitation Act applied in both cases and that the state had a margin of appreciation in such matters, therefore if no compensation was payable to one then none could be payable to the other.

The problem that I have with the influence of Pye over subsequent cases is that I find that the European court seem to have contradicted their own summation of the situation from the outset.

“ The registered land regime in the UK is a reflection of a long established system in which a term of possession gave sufficient title to sell. Such arrangements fall within the states margin of appreciation, - unless they give rise to results which are so anomalous as to render the legislation unacceptable.”

What could be as anomalous as a loss of 10.5 million pounds worth of property to a squatter without any opportunity for redress or compensation in lieu of loss.
The mere fact that outcome of the case represented a fixed precedential position makes it an anomaly in its own right before one considers the stratospheric loss of beneficial title to Pye.
It is striking that a court with independence not only in the legal sense but also in the geographical would entertain a decision with the descent of 41.2% of the decision making panel. There is a condescending air around the decision of the grand chamber of the ECHR in Pye v UK (44302/02) when other Public law is considered, for example, an anomaly can be construed between the use of Art..1 Proto..1 paragraph 2, “ control of the use of land”, in this case and its application under, The Acquisition of Land Act 1981 and Land Compensation Act 1961 s5 part 2;

“The value of land shall be subject as herein after provided, be taken to be the amount which if the land, if sold on the open market by a willing seller, might be expected to realize.”

Although the Act refers to a different means of title transfer, it is more than noticeable the rules of Art..1 Proto..1 invoke a safeguard to the protection of the rights of the paper title owner, whether that land be registered or not, in terms of the financial compensation for the loss of beneficial title.
To allow such a huge impact on adverse possession rules within England and Wales is surprising and gives rise to a preponderance of the intention of the council in relation to the balance of fairness.

(b) John is the freeholder of No. 30 Park Avenue Belfast, which is a commercial building. In October 1990, he entered into a 25 year lease agreement with Light Bookstores Ltd. In 1996, the bookstore closed due to poor sales, but the management continued to pay rents to John, who moved to Alicante, Spain in 2000.

In January 1998, Sharp Electronics Ltd. moved into No. 30 Park Avenue without the consent of John or Light Bookstores Ltd. In December 2010, Sharp Electronics Ltd. applied to the Land Registry to have their names registered as co-owner alongside John's name.

John became aware of this development, and challenged the application made to the Land Registry by Sharp Electronics Ltd. They countered that they have adversely possessed the property, having occupied the same continuously for a period of 12 years.

With the aid of case law and statutes, advise the parties (John, Light Bookstores Ltd, and Sharp Electronics Ltd.) on their respective rights. Would your answer be different if the property were located in London, England?

Dear John, In respect of your rights on this matter I advise you as follows.
Sharp Electronics have claimed to have taken possession of your property at No. 30 Park Avenue, Belfast.
Their claim is incorrect for the following reasons,

i. Time does not run against you, the freeholder until the lease with Light bookstores ends. ii. The squatter does not acquire the lease; the possession is adverse to the tenant and not to you, the lessor. iii. You, the lessor, have a reversionary right in the lease which can be used to eject the squatter. iv. There cannot be adverse possession during the tenancy as the tenant will be estopped from denying the landlords title. v. By article 29 Limitation (NI) order 1989, adverse possession will bar the landlords right to rent by will not extinguish your title. vi. Under Schedule 1 of paragraph 7 Limitation (NI) Order 1989, If you fail to exercise you’re right of re-entry under a forfeiture clause, you right of re-entry is barred after 12 years but your title remains intact, so you can still claim possession on the expiration of the lease. vii. Time will not run against you unless a tenancy at will is determined, which it is not in your case.
The clear meaning of this advice is that under NI legislation the squatter has no rights to your property unless he is paying rent to someone falsely claiming to be the freeholder, which in your matter you have previously established not to be the case. In accordance with the established facts of this matter I can assure you that for the above reasons your title is secure
Information relevant to your situation may be found in the HOL/Supreme court decision in Fairweather v St Marylebone Property Co Ltd[1963] AC 510 – The surrender by a tenant to a landlord gives the landlord the right to immediate possession, thereby accelerating your right of action against the squatter/ adverse possessor.
If this takes place then you may eject the squatter, whose possession is adverse to yours.

Yours Faithfully,
Jason Allen.

Dear Light bookstores Ltd, In respect of your lease of property at 30 Park Avenue, Belfast, I can offer you some advice in the matter of your position, in your interest, as lessee.
As you have ownership under lease for the duration of 25 years at the above address I am obliged to draw to your attention that under the provisions of schedule1 para.6(1) Limitation (NI) Order 1989 that if a tenant pays a minimum of £10.00 to any person wrongfully claiming to be the freeholder of that property, this would amount to adverse possession against the landlord and his title would be barred after twelve years.
In your and your landlords interest I am bound to draw your attention to Fairweather v Marylebone property co Ltd (1963) AC 510 and instruct you that as a result of decisions made at the House of Lords pertaining to adverse possession of a lease by a squatter, that it may provide an amenable result for both you and your landlord if you were to surrender your lease to the landlord, as this action would give the landlord a right to immediate possession of the above property and also would relieve you from your financial obligation under the terms of your lease. The alternative is that you will continue to pay rent for the benefit of the squatter.

Dear Sharp Electronics Ltd, In respect of your claim to adverse possession of 30 Park Avenue, Belfast, it is my pleasure to inform you that under the provisions in the Limitations (NI) Order 1989, Time will only run against the landlord when a tenancy at will has been determined.
As the action of trespass at the above property is the manner in which you are in residence then you are considered a tenant at sufferance and the landlord has means by which he may effect a remedy through the courts which will result in your removal.

Yours Faithfully,
Jason Allen.

Yes, my answers would be different if the situation were in England/Wales as in Central London Commercial Estates Ltd v Kato Kagaka Ltd (AXA Equity and Law Life Assurance Society plc, third party) [1998] 4 ER 948,

Sedley J held that any surrender by the dispossessed lessee was ineffective to allow a lessor into possession, because the lessee’s entire estate was held in trust under section 75(1) of The Land Registration Act 1925, for the squatter. In this case, John would hold the property in trust for Sharp Electronics and they would be in possession.

Bibliography

BOOKS

Martin Dixon, Modern land law (Routledge Press,5th edition ) p 7,16,30,46,50

Mark Wonnacott, Possession of land (Cambridge University Press, 2nd edition 2006) p 46,49,125

Kevin J. Gray, Kevin Gray and Susan Francis Gray Land law (Oxford University Press,9th edition, 2007) p 85,89,90,109

JOURNALS

Adverse possession, “The New law journal” Volume 155 [2005] Butterworth, p1094,1408,1409

John Summers & Elizabeth Fitzgerald, “To own or not to own” Vol 159 [24 April 2009] Issue 7366

WEBSITE ( No Author )

http://www.practicalconveyancing.co.uk/content/view/9683/1109/>accessed 6 July 2011

http://www.1cor.com/1315/?form_1155.replyids=982> accessed 02 July 2011

http://www.mylawyer.co.uk/ml/index.cfm?event=base:article&node=A76061BD76872 Notice to quit>accessed 02 July 2011

http://www.publications.parliament.uk/pa/ld200809/ldjudgmt/jd090311/ofu-2.htm>accessed 02 July 2011

http://www.dfpni.gov.uk/adverse-possession>accessed 22 June 2011

UK CASES

Central London Commercial Estates Ltd v Kato Kagaka Ltd (AXA Equity and Law Life Assurance Society plc, third party) [1998] 4 ER 948

Central London Commercial Estates Ltd v Kato Kagaka Ltd (AXA Equity and Law Life Assurance Society plc, third party) [1998] 4 ER 948

EUROPEAN CASES

J.A. Pye (Oxford) Ltd v. The United Kingdom (Application No. 44302/02) 30 August 2007

NEUTRAL CITATIONS

Harrow LBC v Qazi [2004] 1 AC 983

Pye v Graham [2002] UKHL 30

Buckinghamshire County Council v Moran [1990] Ch 623

Prudential Assurance v Waterloo (1999) 17 E.G. 131

Archangel v Lambeth (2000) EGCS 148

Trustees of Grantham Christian Fellowship v Scouts Association [2005] EWHC 209 (Ch)

Fairweather v St Marylebone Property [1963] AC 510

Central London Estates v Kato Kagku [1998] 4 All ER 948.

LEGISLATION UK

Limitation Act 1980 s.15

Limitation Act 1980 sched.1, para.10

Limitation Act 1980 sched.1, para 11

LRA 1925 s.70(1)(f) and (g).

Beaulane Properties v Palmer [2005] EWHC 1071 (Ch)

LEGISLATION EU

Human Rights Act 1998

The First Protocol

Article 1 Protection of property

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.

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[ 1 ]. HRA is Human Rights Act 1998, ECHR is European Convention on Human Rights.
[ 2 ]. Land registration Act 1925 s75, Limitations Act 1980 s 15.
[ 3 ]. Ibid..
[ 4 ]. Article 1 of Protocol 1 ECHR, 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.
[ 5 ]. Ibid., second paragraph.
[ 6 ]. Taiwo Oriola, Introduction to Property Law, Seminar.
[ 7 ]. Limitation Act (1980), section 29(2) Acknowledgement of Title.
[ 8 ]. J A Pye (Oxford) Ltd v Graham [2002] UKHL 30, Lord Browne-Wilkinson confirmed that there are two elements to possession: (i) factual possession and (ii) intention to possess:
[ 9 ]. Emmanuel Ofolue v. Erica Bossert [2008] EWCA Civ 7, LADY JUSTICE ARDEN, Such arrangements fall within the State's margin of appreciation. Para.. 33.
[ 10 ]. Try Construction Limited –v-Eton Town House Group Limited [2003] EWHC60 (TCC) court explored the duty to act fairly in cases claiming an extension of time.