| HUMAN RIGHTS — Jurisdiction — Compatibility — Rule of law of member state — Decision of European Court of Human Rights — Circumstances in which Court of Appeal bound to follow decision of European court
LIMITATION OF ACTION — Land, recovery of — Possessory title — Registered owners living abroad — Former tenant letting defendant into property — Defendant claiming to be tenant in possession proceedings — Whether defendant’s claim precluding intention to possess — Whether defendant’s claim constituting acknowledgement of claimants’ title — Whether title extinguished — Limitation Act 1980, s 29 — Human Rights Act 1998, s 3, Sch 1, Pt II, art 1
Ofulue and another v Bossert [2008] EWCA Civ 7; [2008] WLR (D) 22
CA: May and Arden LJJ, Sir Martin Nourse: 29 January 2008
The Court of Appeal should follow a decision of the European Court of Human Rights that the law of adverse possession as it stood prior to the Land Registration Act 2002 did not violate the right to peaceful enjoyment of possessions, guaranteed by art 1 of Protocol No 1 to the Convention for the Protection of Human Rights and Fundamental Freedoms.
The Court of Appeal so stated dismissing the appeal of the claimants, Emmanuel Ofulue and Agnes Ofulue, from the decision of Judge Levy QC sitting in the Central London County Court on 28 October 2005 whereby he declared that the claimants’ title to the property at 61 Coburn Road, Bow, London E3 had been extinguished in 1999 and ordered amendment of the title to show the defendant, Erica Josephine Bossert, as the registered proprietor.
The judge found, inter alia, that the defendant and her father had taken factual possession of the claimants’ property in 1987 and had an intention to do so; that the claimants had known since 1987 that the defendant and her father were in possession; that the steps taken to remove them had been “slight in the extreme”; and that therefore the claimant’s title had been extinguished in 1999, pursuant to ss 15 and 17 of the Limitation Act 1980.
ARDEN LJ said that the first issue on the appeal was whether the Court of Appeal should follow JA Pye (Oxford) Ltd v United Kingdom (Application No 44302/02) (unreported) 30 August 2007, in which the Grand Chamber of the European Court of Human Rights had concluded that the law of adverse possession as it had stood prior to the Land Registration Act 2002 did not violate the right to peaceful enjoyment of possessions under art 1 of the First Protocol. It was necessary to consider the proper approach to be adopted by an English court where the Strasbourg court had already considered the rule of law that a party before it contended was not Convention-compliant: see R v Director of Public Prosecutions, Ex p Kebilene [2000] 2 AC 326, 380–381, per Lord Hope of Craighead. In her Ladyship’s judgment, it followed from the obligation in s 2 of the Human Rights Act 1998, as interpreted in cases such as R (Ullah) v Special Adjudicator [2004] 2 AC 323, that, in the absence of special circumstances (1) if domestic law within an area found by the Strasbourg court to be within the contracting states’ margin of appreciation were challenged before an English court, the English court should consider whether the domestic rule served a legitimate aim and was proportionate, but that it should find that the law was Convention-compliant if those tests were satisfied; and (2) where the Strasbourg court had itself already carried out this exercise, the English court should follow the decision of the Strasbourg court. In the Pye case the Strasbourg court had accepted that the national authorities could in general determine the rules for the extinction of title as a result of the occupation of the land by a person who was not the true owner. That determination applied to all decisions on adverse possession and it was not open to the Court of Appeal not to follow that determination because the case was distinguishable on its facts. For the doctrine of the margin of appreciation to be inapplicable, the results would have to be so anomalous as to render the legislation unacceptable and that had not been demonstrated in the present case. The second issue was whether the defendant’s claim, in possession proceedings brought by the claimants in 1989, that she and her father were tenants prevented them from having the requisite intention for adverse possession. What had emerged from the decision of the House of Lords in J A Pye (Oxford) Ltd v Graham [2003] 1 AC 419 was that it was necessary only to show that the person who claimed to have acquired property by adverse possession was in possession without the consent of the paper owner and intended to possess. A person who wrongly believed that he was a tenant could occupy property in such a way that he had possession, just as much as a squatter. He did not have to show that he had an intention to exclude the paper owner. Therefore, the defendant’s defence in the possession proceedings did not prevent her from having the intention required for adverse possession. The third issue was whether the defence and counterclaim served by the defendant and her father in the possession proceedings had been an acknowledgement of the claimants’ title for the purposes of s 29 of the Limitation Act 1980 which postponed the running of time beyond the start of the present proceedings. In her Ladyship’s judgment, there was no reason in principle why a statement in a pleading could not constitute an acknowledgement. But, although by claiming to be entitled to a lease of the property the defendant and her father had admitted that the claimants were the true owners of the property, they were clearly not accepting that the claimants were entitled to immediate possession. Therefore on the true interpretation of the defence there could have been no acknowledgement that the defendant and her father were not in possession or that time was not running in their favour for the purpose of the 1980 Act. The reference to “ title” in s 29 was to be interpreted as a reference to the relevant title for the purpose of the dispute between the parties in question. Therefore the service of the defence and counterclaim did not prevent the running of time in the defendant’s favour for the purposes of the 1980 Act.
SIR MARTIN NOURSE and MAY LJ agreed.
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