land law

The debate in relation to a breach of a fundamental human right has arisen where an individual may lose all rights over their own land to a squatter which subsequently has acquired title to a house worth thousands after 12 years of adverse possession. The Family Housing Association v. Donellan and Ors case was the first in which a claim was brought using the 1998 Act, appealing the Limitations Act 1980 was incompatible with Protocol 1, Article 1 which states that "every natural or legal person is entitled to the peaceful enjoyment of his possessions". However the case held that this protocol only related to the enjoyment of state owned land in which case does not apply to adverse possession as the squatters are in possession of privately owned land. The leading case in which was more successful in following convention law over domestic law was seen in Beaulane Properties v. palmer. Although Nicholas Strauss QC held that adverse possession was proven through the 12 year rule there had also been a breach of the Human Rights Act 1988 under s (3).

This very argument was seen attempted in the earlier case of Pye v. Graham however as this was initially brought before the House of Lords before the enactment of the HRA 1998 the courts could not consider the point. Despite this Pye Ltd appealed the earlier decision after the introduction of the HRA 1998 which saw the argument arise that the both the LA 1980 and LRA 1925 were not compatible with the HRA 1998. The European Court of Human Rights, by a majority, held that both the Limitation Act 1980 and Land Registration Act 1925 ended Pye's ownership of the land in a way which was an unrequited aim of legislation as neither act's could not have intended such an outcome. Pye had argued the original LRA 1925 caused an inconsistency as there was no clear opportunity to claim the land back and to evict the squatter unlike the newer LRA 2002 which lessened the length of adverse possession required and enabled the paper owner two years to evict the squatter upon notice. If there remains to be no action taken by the paper owner after the two year period, upon successful reapplication for the remaining proprietory title, paper owner has been successfully dispossessed. The ECHR held although there had been successful adverse possession this did not constitute the loss of 25 hectares and subsequently the loss of thousands; which donates the sole issue of compensation or lack thereof. Finally the courts held the 1925 legislation was therefore in breach of protocol 1, Art 1, however the UK government refused this claim and referred the case to the Grand Chamber of the ECHR. The grand chamber held claims for adverse possession before 2002 cannot be disturbed on the grounds of a breach of convention right however successful claims of adverse possession following 2002 will be incompatible with the Human Rights convention. Although the enactment of the HRA 1998 required convention law to be adhered to the decision, like any of the ECHR, has no direct effect upon UK law thus leaving us to deal merely with the original Pye v Graham in which the squatter effectively dispossessed the title owner of their rights.

The land registrar published practice guidelines stipulating the lack of acceptance for claims of adverse possession unless the principles of the Beaulane case were met rather than those laid down in Pye v. Graham. This relates back to the fundamental point whereby the HRA 1998 had not been introduced when the Pye case was initally seen before the British Courts therefore Beaulane was the precedent case in this area of law.

When discussing the sale contracts in relation to Linden Property Development one must firstly establish the form of tenure required for Linden's company to sell. Traditionally, in land law there have been two forms of tenure which have been established; firstly the freehold estate in which allowed for an individual to own the land outright and secondly a leasehold estate whereby a relationship between a landlord and a tenant arises in leasehold land. The introduction of the 1925 Act expressly stated the statutory definition for both of these interests in the estate. As stated in the legislation, for a freehold tenure to exist there must be a "fee simple absolute in possession" and in the case of failure to satisfy each of these terms it cannot be held as a freehold property and as a substitute be an equitable interest in land. This "fee simple" term requires for the estate to be inheritable for an indefinite use, generally recovered through heirs of the owner which foremost is not the wishes of Linden; in order for Linden to sell this property as a freehold estate they would, in effect, be selling on the full rights and enjoyments which is clearly not the required outcome. This therefore leads us back to the second form of tenure; a leasehold tenure which consents to a "contract for the exclusive possession and profit of land for some determinate period". This tenure allows for a tenant to be granted a lease "for life" by a simple conversion in to a term of 90 years determinable on the lessee's death. This gives Linden's company the choice to sell on the property as a mere leasehold tenancy whereby Linden remains as the sole owners. Although a leasehold tenure remains as the suitable form for this particular scenario, Linden may also have an option for a Commonhold tenure which has been a new development in land law, aimed at long lease owners of properties who can be eligible to buy the freehold. This class of tenure is commonly seen within shared accommodation, non-residential areas and developments of flats. Commencing the introduction of the Commonhold and Leasehold Reform Act 2002 we have seen the ability for these subdivided flat owners to obtain the freehold of their individual property thus having the opportunity to obtain a control over the money spent.

Having analysed the three possible tenures, the agreement between Linden and their new tenants must include the provisions stated above which are known as covenants. A covenant is otherwise known as a promise in which holds the characteristics of a privity of contract which can be enforced in the traditional means of an injunction or damages as a remedy. Although a covenant can be included in the tenures discussed above there have been a number of problems arising when the coventor has sold on the property or lease. These covenants fall within the principle of a burden and benefit which have both proven to be important when passed on to its successors; allowing it to "run with the land" however many difficulties have arisen in attempting this, one of which has been seen between the two possible covenants. Covenants can be segregated in to two possibilities; either a negative covenant which restricts the covenantor to the use of the burdened land or a positive covenant which requires the expenditure of the covenantee in order to carry out the condition.