Sarah Popp, partner at Staffordshire law firm Ansons LLP, looks at the implications of a recent High Court case relating to squatters' rights and registered land.

A dramatic decision in the High Court recently has thrown the principle of squatters' rights into question.

Mr Nicholas Strauss QC declared that the law on adverse possession in relation to registered land under the Limitation Act and the Land Registration Act was incompatible with Article 1 of the First Protocol of the European Convention on Human Rights guaranteeing peaceful enjoyment of property. He declared that the law in relation to squatters and registered land deprived the registered owner of land without payment and was therefore an unjustifiably disproportionate response to any legitimate policy objective.

The issue was whether the Defendant, Terence Palmer, had acquired squatters' rights to a field in Harlington near Heathrow Airport under the Land Registration Act against the Claimant, Beaulane Properties Ltd, who had been the registered owners of the field since 1991. Mr Palmer claimed that he had been using the field for grazing his horses since 1986.

The Judge was asked to consider whether the Human Rights Act was being infringed. He had to consider whether a deprivation of property rights was potentially justifiable. Article 1 provides that “..no-one should be deprived of his possessions except in the public interest.”. He recognised that the purpose of the acquisition of squatters' rights was to eradicate the evil of burdensome and expensive conveyancing and, in some cases, lost transactions. It was not merely to regulate the private interest of owner and squatter in individual cases. He therefore indicated that the provisions could be potentially justifiable if they were appropriate to the policy objectives and proportionate.

The purpose of the Land Registration Act in 1925 was because of a need to protect the person who had been in possession of land for a long period of time in reliance on inaccurately placed fences or other boundaries, something which would not be disclosed on the land register. He declared that the expropriation of registered land without compensation in the circumstances of this case did not advance any of the legitimate aims of the relevant statute. He declared that the Claimant's loss of the disputed land was incompatible with Article 1 of the First Protocol on Human Rights.

Is this a chance to defeat squatters' rights? This is doubtful. The particular case in question only affects a very small number of potential squatters' cases. The 2002 Land Registration Act introduced a new scheme for adverse possession/squatters reflecting the fact that in registered land the basis of title is registration rather than possession. The Land Registration Act has shifted the balance more in favour of the landowner and notice must be given to the landowner of the trespasser's claim so that the landowner can oppose it. The trespasser will then succeed only if he can satisfy one of three conditions. In light of the decision in this case, the Land Registry has stated that when an application is made under the Land Registration Act to register rights by a squatter, and the necessary period of adverse possession started after the 2nd October 1988, the applicant must show an arguable case for the possession being inconsistent with the use or intended use of the land by the registered proprietor and not merely that possession has been taken without consent.

This guidance does emphasise the importance of this decision. The reason for the Land Registry choosing the 2nd October 1988 is that if the adverse possession started on that date the 12 years adverse possession will have expired before the coming into force of the Human Rights Act in which case there would be no justification for giving adverse possession anything other than its established interpretation i.e. possession of the land without the owner's consent. There is thus a limited number of cases in which this decision will apply.

If you are a landowner you are much better protected from squatters by registering your property if it is not registered already and the land registry offers a small discount if you do this voluntarily.

For more information please contact Sarah Popp on 01543 431 999 or by email at spopp@ansonsllp.com