Beaulane Properties Ltd. v Palmer

The pre-2003 law of adverse possession could transfer registered land to a trespasser without compensation, even where the registered owner was blameless and the trespass was unobvious. Applied to registered land, that result constituted a deprivation of property engaging article 1 of the First Protocol. In circumstances such as these, it was disproportionate and incompatible with Convention rights.

Section 3 of the Human Rights Act 1998 permitted a Convention-compliant interpretation of section 75 of the Land Registration Act 1925. “Adverse possession” was therefore confined to possession inconsistent with the registered owner’s present or intended use of the land. Possession which did not interfere with that use did not defeat the registered title.

Beaulane Properties Ltd. was the registered owner of a field. Terence Palmer had enclosed and used the field for grazing horses and cattle for more than 12 years. Beaulane sought possession and argued that Palmer had not acquired title by adverse possession.

The court found that Palmer had enjoyed exclusive possession from October 1986 and had completed the relevant period in June 2003. It then considered whether the operation of the pre-2003 statutory regime was compatible with article 1 of the First Protocol and, if not, whether section 3 of the Human Rights Act 1998 permitted a Convention-compliant interpretation.

1. Adverse possession. The applicable test, stated in J.A. Pye (Oxford) Ltd v Graham and upheld in Powell v MacFarlane and Buckinghamshire County Council v Moran, required exclusive possession without the registered owner’s consent, acts dealing with the land as an occupying owner might ordinarily be expected to do, and an intention to possess and exclude others so far as reasonably possible. Palmer satisfied that test on the facts.
2. Interruption. Palmer’s deliberate representation in 1991 that he had an arrangement with the previous owner amounted to active concealment under section 32(1)(b) of the Limitation Act 1980. Time therefore did not run during the concealed period. The correspondence in April to June 1991 also meant that Palmer could not have been sued for trespass until notice expired. His letter of 27 June 1991 did not acknowledge Beaulane’s title.
3. Convention compatibility. Section 75 of the Land Registration Act 1925, operating with the Limitation Act 1980, deprived Beaulane of its registered property and transferred it to Palmer. It did more than bar access to the courts or control use of property. Although limitation rules pursued legitimate aims in general, those aims were not materially advanced in registered-land cases such as this, outside matters such as uncertain boundaries or dealings off the register. The uncompensated transfer was disproportionate and incompatible with article 1 of the First Protocol.
4. Section 3 interpretation and order. It was possible to interpret section 75 as applying where possession was adverse according to the case law existing when the provision was enacted. Palmer’s possession was not adverse in that sense because it was not inconsistent with Beaulane’s present or intended use. His claim to have acquired the land therefore failed, and Beaulane remained the owner. A declaration was to be made accordingly.