The Constitutionality of Adverse Possession Under the European Convention 1950. JA Pye (Oxford) Ltd V United Kingdom (2008) 46 EHRR 45 (GC)

Abstract

The Fourth Chamber of the European Court of Human Rights caused controversy with its judgment in JA Pye (Oxford) Ltd v United Kingdom (2006) 43 EHRR 3 (IV), where it ruled that adverse possession – the common law equivalent of acquisitive prescription – is in conflict with the property clause (a 1 of Protocol No 1; A1P1) of the European Convention 1950. At issue was the question whether the loss of ownership caused by adverse possession infringes an owner’s right to peaceful enjoyment of his possessions under A1P1. The Fourth Chamber held that adverse possession upsets the fair balance required by the Convention in that it results in an uncompensated expropriation contrary to the second rule of A1P1. This decision led to an outcry from property law scholars from member states of the European Union who feared that it also invalidated their domestic rules relating to prescription. However, the Grand Chamber subsequently allayed these fears in JA Pye (Oxford) Ltd v United Kingdom (2008) 46 EHRR 45 (GC), where it decided that adverse possession amounts to a mere (constitutionally valid) regulation of property rights in terms of the third rule of A1P1. The purpose of this case note is therefore to assess – from a South African perspective – the Grand Chamber’s finding that adverse possession complies with A1P1.