JOINT DISSENTING OPINION OF JUDGES MARUSTE, GARLICKI AND BORREGO BORREGO

1. We consider that the applicant companies have not had to bear an excessive or individual burden. They lost their land as a result of the foreseeable operation of legislation on limitation of actions which had recently been consolidated by the legislator, and the applicant companies could have stopped time running against them by taking minimal steps to look after their interests. We therefore take the view that the deprivation of possessions was compatible with Article 1 of Protocol No. 1, even in the absence of compensation.

2. The real "fault" in this case, if there has been any, lies with the applicant companies, rather than the Government. It has to be born in mind that the applicant company was not a private individual or an ordinary company with, one could assume, limited knowledge on relevant real estate legislation. They were specialised professional real estate developers and such a company had or should have had full knowledge about relevant legislation and the duties involved. They should have had full access to the legal advice if need be and can not claim to be ignorant as to the adverse effects of the limitation legislation. It should have been known to the applicants from the very beginning that their property right was subject to restrictions, qualifications or limitations imposed by the pre-existing legal requi rements of the Limitation Act. The Government have done no more than continue to operate a mechanism which, at the end of a relatively long limitation period, adjusts land ownership to reflect the fact that an action for adverse possession is time-barred.

Possession (ownership) carries not only rights but also and always some duties. The purpose of the relevant legislation was to behove a landowner to be vigilant to protect the possession and not to "sleep on his or her rights", (as, for example, in Bahia Nova S.A. v. Spain , (no. 50924/99, Decision of 12 December 2000), in which the applicant company ’ s failure to act over a substantial period substantially reduced its entitlement to compensation). The duty in this particular case - to do no more than begin an action for repossession within 12 years - cannot b e regarded as excessive or unreasonable .

3. The Convention is intended to guarantee a minimum standard of human rights protection. It is open to the domestic authorities to provide a higher standard. The Court should not be unduly influenced by developments after the facts of the case. At the same time it leaves to the member states a margin of appreciation in determining the ways of implementation of those standards. This margin is wider in respect of the right protected under the Article 1 of Protocol No. 1. We accept that the Land Registration Act 2002 provided additional procedural protection for negligent landowners, but that does not mean that the previous position was

in violation of the Convention. We note that the United Kingdom provisions on adverse possession appear never to have been challenged before the former Commission or the Court until the present case, and we fear that the majority have been swayed by the legislative changes and judicial comments, rather than trying to assess what would have been the position if, for example, the 2002 had not been passed.

4. In accordance with the general practice, we voted with the majority on the question of Article 41. The Article 41 issues, which have been reserved, underline the problems inherent in a finding of a violation of Article 1 of Protocol No. 1 in this case: If the Government are responsible for the deprivation, what is the measure of their responsibility? In any event the loss of the land was not a deprivation of possessions or a confiscatory measure for which the payment of compensation would be appropriate. A finding that the companies were not responsible at all for the loss of their land - and that they should be compensated to the full value of the land at the taxpayer ’ s expense - would run contrary to most people ’ s notions of basic justice.

[1] Future interests, such as the reversion of a lease, in respect of which the limitation period began to run only when the interest fell into possession.