The English law relating to adverse possession was thrown into some disarray in 2005, when the European Court of Human Rights ruled that J A Pye (Oxford) Ltd were entitled to compensation from the UK Government because they had "lost" their title to an area of land in Berkshire, following possession of the land for the period of limitation for a period of 12 years by Mr and Mrs Graham, the local farmers who had originally leased the land. This had happened on the basis of English Law prior to the Land Registration Act 2002, the terms of which now make limitation more difficult.
In Scotland, we held our breath, since the law of positive prescription, by which a good title to land, exempt from challenge, can be acquired after possession for a continuous period of ten years "openly, peaceably and without judicial interruption" has similarities to the rules relating to adverse possession in England. In Scotland, the possession must be based on and follow the recording or registration of an appropriate title. Such possession can often follow a disposition a non domino (literally by a "non-owner"), registered with exclusion of indemnity, to enable completion of title to land for example in cases where the "true" owner (i.e. the person with a registered or recorded title) cannot be traced.
The ECHR decision that the UK had breached J A Pye's human right to peaceful enjoyment of its possessions (article 1 of protocol 1 of the European Convention on Human Rights) came under considerable criticism at the time, but also sparked much speculation about whether the ramifications of the decision could mean that in Scotland the law relating to positive prescription could come under fire. Could positive prescription fall foul of human rights legislation in the same way that adverse possession had?
Fortunately for positive prescription as well as adverse possession, the UK Government challenged the ECHR decision, and it has now been overturned by a majority of the Grand Chamber of the ECHR, meaning that for the moment at any rate, positive prescription is unlikely to be subjected to a similar challenge. In particular the Grand Chamber underlined the importance of giving due respect to long standing domestic laws, particularly in relation to property. A different type of scrutiny awaits positive prescription however, as it has already been the subject of Scottish Law Commission Discussion Papers on the system of Land Registration in Scotland, which is ripe for a major overhaul.
The Grand Chamber decision in the case of J.A. Pye (Oxford) Ltd and J.A. Pye (Oxford) Land Limited v The United Kingdom is available from the website of the European Court of Human Rights. To view the decision please click here.
The Scottish Law Commission Discussion Paper on Land Registration: Rectification and Indemnity (Discussion Paper No 128) is available from the website of the SLC here.