Possession, Indefeasibility and Human Rights

Lynden Griggs

doi:10.5204/qutlr.v8i2.44

Abstract

The interaction of land based doctrines with human rights law has, to date, rarely attracted the interest of land lawyers. However, with the surge in human rights jurisprudence, and the European litigation of JA Pye (Oxford) Ltd and Ors v Graham and Ors, it is becoming apparent that human rights may have a significant future role to play in real property law. This paper examines the potential for that conflict in three areas. Two of these areas represent archetypal possession of land doctrines (adverse possession and prescriptive easements), with the third, the ideological foundation stone of registration land systems, indefeasibility. The suggestion is made that any resolution between these established real property doctrines and human rights lies not so much in logic, but in the value judgments that the courts will make in balancing the economic imperatives of the Torrens system with the historical and traditional importance of possession to land ownership. In other words, how we define, determine and allocate realty interests in contemporary Australia.

Highlights

Australia has recently seen a surge in the evolution of human rights jurisprudence
With the surge in human rights jurisprudence, and the European litigation of JA Pye (Oxford) Ltd & Ors v Graham and Ors, it is becoming apparent that human rights may have a significant future role to play in real property law
The suggestion is made that any resolution between these established real property doctrines and human rights lies not so much in logic, but in the value judgments that the courts will make in balancing the economic imperatives of the Torrens system with the historical and traditional importance of possession to land ownership

Summary

INTRODUCTION

In giving the leading judgment, Lord Browne-Wilkinson summarised the critical issue: ‘The question is whether the defendant squatter has dispossessed the paper owner by going into ordinary possession of the land for the requisite period without the consent of the owner.’[10] According to the House of Lords any suggestion that possession depended on the intention of the true owner was ‘heretical and wrong.’[11] it was not necessary to consider that there must be some form of ‘confrontational, knowing removal of the true owner from possession.’[12] With these principles in mind, there was no question that Graham had possessed the land for the requisite time His title could trump that of the registered owner. JA Pye (Oxford) Ltd & Ors v Graham and Ors [2002] 3 WLR 221, [73] (Lord Hope of Craighead)

B The European Court of Human Rights – Chamber Judgment

C The European Court of Human Rights - Grand Chamber Judgment

PRESCRIPTIVE EASEMENTS

INDEFEASIBILITY

AIMS OF TITLE REGISTRATION

97 See generally

CONCLUSION