JOINT DISSENTING OPINION OF JUDGES ROZAKIS, BRATZA, TSATSA-NIKOLOVSKA , GYULUMYAN AND Å IKUTA

1. We are unable to agree with the majority of the Court that Article 1 of Protocol No. 1 was not violated in the present case. In our view, the extinction of the applicant companies ’ beneficial interest in the land of which they were the registered owners, as a result of the effect of the relevant provisions of the 1925 and 1980 Acts, was in violation of their right to the peaceful enjoyment of their possessions under that Article.

2. In common with the majority of the Court, we consider that Article 1 of the Protocol was not only applicable in the present case, but that the impugned legislation gave rise to a clear interference with the applicant companies ’ rights under that Article which was such as to engage the responsibility of the respondent State.

3. The judgment, correctly in our view, rejects the Government ’ s argument that, since it is principally concerned with the law of limitation of actions, the case falls to be examined under Article 6 of the Convention alone and not under Article 1 of the Protocol. As pointed out in the judgment, not only is there nothing in principle to exclude the examination of a claim under Article 1 where the complaint is directed against legislation concerning property rights, but the Government ’ s argument gives insufficient weight to the fact that the Court is concerned in the present case not only with the limitation of actions but with the law of adverse possession as it affects registered land. That law is embodied not merely in the provisions of section 17 of the 1980 Act, which bars a course of action to recover the land, but in the provisions of section 75 of the 1925 Act, the effect of which is to extinguish beneficial title to the property after twelve years ’ adverse possession. The Court of Appeal in the present case held that the extinction of the applicant ’ s title (under section 75) was simply a “logical and pragmatic” consequence of the barring of an owner ’ s right to bring an action (under section 15). This view appears to be endorsed by the majority of the Court in asserting that, where an action for recovery of land is statute-barred, “termination of the title of the paper owner does little more than regularise the respective positions, namely to confirm that the person who has acquired [ the ] title by twelve years ’ adverse possession is the owner” (paragraph 7 6 of the judgment ). Even if the provisions of section 75 are properly to be so regarded as a matter of domestic law, the fact remains, as noted in the judgment of the Chamber (§ 55), that the combined effect of the legislative provisions was both to deprive the applicants of their substantive property rights and to preclude them from lawfully repossessing the land, the beneficial title to which they had lost.

4. It is also implicit in the judgment that the Court – again, correctly in our view – has upheld the rejection by the Chamber of two further arguments of the Government, namely (i) that Article 1 was not engaged, since the applicant companies had only a defeasible property interest in their land which cease d to exist after the expiry of twelve years of adverse possession , and (ii) that there was, in any event, no interference with the applicants ’ property rights for which the State could be held responsible, the case giving rise at most to the positive obligations of the State to secure rights to property.

5. According to the view of the majority of the Grand Chamber, the interference with the applicant compan ies ’ property rights which resulted in a loss of beneficial ownership is to be seen as a “control of use of property” which falls to be examined under the second paragraph of Article 1, rather than as a “deprivation” of possessions within the meaning of the second sentence of that Article, as found by the Chamber.

6. It is well established that a legislative measure which brings about a transfer of property from one individual to another in furtherance of a particular social policy may give rise to a “deprivation” of possessions within the second sentence (see, for example, James and Others v. the United Kingdom , 21 February 1986, Series A no. 98 ). It is, however, also clear that not every loss of ownership of property resulting from a legislative meas ure or from an order of a court will be equated with a “deprivation” of possessions: as noted in the judgment, in AGOSI v. the United Kingdom (24 October 1986, Series A no. 108) , Air Canada v. the United Kingdom (5 May 1995, Series A no. 316-A) , and Gasus Dosier- und Fördertechnik GmbH v. the Netherlands (23 February 1995, Series A no. 306-B) , the forfeiture or other loss of ownership was treated as a “control of use” of property within the second paragraph of Article 1, while in Beyeler v. Italy ([GC], no. 33202/ 96, ECHR 2000-I) , the interference with the applicant ’ s property rights was examined under the first sentence of that Article.

Like the majority of the Court, we consider that the legislative provisions in issue in the present case are significantly different from those examined in the earlier cases referred to. In particular, we accept that the relevant provisions of the 1925 and 1980 Acts were not intended to deprive property owners of their beneficial title in furtherance of a social policy of redistribution of land or transfer of ownership. Rather, they represented generally applicable rules designed to regulate questions of title in a system in which twelve years ’ adverse possession was sufficient to extinguish the former owner ’ s right to re-enter or to recover possession of land. We can agree that the loss of beneficial title in such circumstances is to be seen as a “control of use” of land rather than a “deprivation” of possessions. However, like the Chamber, we would emphasise that the three “rules” in Article 1 are not distinct or watertight in the sense of being unconnected and that the principles governing the question of justification are substantially the same, requiring both a legitimate aim and the preservation of a fair balance between the aim served and the individual property rights in question.

7. As to the legitimacy of the aim of the measures, it is not in dispute that limitation periods for the recovery of land may be said to pursue a legitimate aim in the public interest. However, as was pointed out in the Consultative Document of the Law Commission, the law of adverse possession, which does not merely bar claims but has the effect of extinguishing title, can only be justified by “factors over and above those which explain the law of limitations”.

The present case concerns the law of adverse possession as it applies to registered land in which, as noted in paragraph 10 below, the reasons traditionally advanced to justify the transfer of beneficial title to the adverse possessor at the end of the limitation period have much less cogency than in the case of unregistered land. We find much force in the view of Lord Bingham in the present case, endorsed by Judge Loucaides in his dissenting opinion , that where land is registered it is difficult to see any justification for a legal rule which compels such an apparently unjust result as to deprive the owner of his beneficial title in favour of an adverse possessor. However, not only is the taking of property as a result of adverse possession a feature common to many legal systems, including other common- law systems, but, despite the important changes to the system of adverse possession made by the 2002 Act in the case of registered land, the system itself has not been abolished. In these circumstances, we share the view of the majority that the extinction of the beneficial ownership of the registered title-holder following the expiry of twelve years of adverse possession cannot be said to be manifestly without reasonable foundation and that the system, as applied in the case of the present applicants, may therefore be said to have served a legitimate aim in the general interest.

8. The central question remains whether the rules of adverse possession applicable to registered land and applied in the present case struck a fair balance between the rights of the registered owners and the general interest served by that system or whether, as the applicant companies argue, they were required to bear “an individual and excessive burden” (see, for example , James and Others , § 50). It is primarily on this point that we part company with the majority of the Court.

9. The striking feature of the manner in which the rules on adverse possession applied in the present case is the contrast between the gravity of the interference with the owner s ’ property rights and the justification provided for that interference.

10. In the case of unregistered land, title was made out by establishing a number of years ’ possession. Title deeds served only as evidence in support of possession, and could be defeated by a person who could prove actual (adverse) possession for the requisite number of years. In such a system, the extinguishment of title at the end of the limitation period could be seen as a coherent element in the rules on acquisition of title. In the Consultative Document of the Law Commission (paragraph 30), four particularly cogent reasons were identified for maintaining a law of adverse possession – the prevention of uncertainty and injustice arising from stale claims; the avoidance of the risk that land becomes unmarketable when possession and ownership are out of kilter; the avoidance of hardship to an innocent but mistaken squatter, who may have incurred expenditure on the land; and the facilitation of the investigation of title to the land (and see, in this regard, The Holy Monasteries v. Greece (9 December 1994, § § 57-61, Series A no. 301 ‑ A) , in which acquisition by adverse possession was found to be of particular importance because there was no land survey in Greece, and because it had been impossible to have title deeds registered before 1856, and legacies and inheritances registered before 1946 (see § 60)).

11. In the case of registered land, however, title depends not on possession, but on registration as the proprietor. A potential purchaser of land can ascertain the owner of the land by searching the register, and there is no need for a potential vendor to establish title by proving possession. As pointed out by the Law Commission, the traditional reasons advanced to justify a law of adverse possession which resulted in the extinguishment of title on expiry of the limitation period had lost much of their cogency. This view was shared in the circumstances o f the present case both by Lord Bingham and by Mr Justice Neuberger , who found that the uncertainties which sometimes arose in relation to the ownership of land were very unlikely to arise in the context of a system of land ownership where the owner of the land was readily identifiable by inspecting the proprietorship register.

12. In the proceedings before the Grand Chamber, the Government placed reliance on a further public interest, namely , the fact that land is a limited resource which should be used, maintained and improved and that, by imposing a finite limit on the time within which land occupied by an adverse possessor may be recovered, a legal owner is encouraged to make use of the land.

While we can accept that, where land is abandoned, it may be in the general interest that it should be acquired by someone who would put it to effective use, we are unable to accept that the general interest would extend to depriving a registered landowner of his beneficial title to the land except by a proper process of compulsory acquisition for fair compensation.

13. It was further contended by the Government that, quite apart from any public interest served by the law, regard should be had, in determining the proportionality of the measures, to the interests of the adver se possessor, in the present case, the Grahams. This view is reflected in paragraph 83 of the judgment, where reference is made to the case of James and Others , in which the Court found that the view taken by Parliament as to the tenants ’ “moral entitlement” to ownership of the houses in issue fell within the State ’ s margin of appreciation, despite the “windfall profits” made by certain “undeserving” tenants.

We are unable to attach weight to this consideration. While , in a case such as the present where there is no mistake on the part of the adverse possessor as to the owner of the land, a justification might arguably be found for a law which prevented the adverse possessor from being summarily evicted from the land after twelve years of occupation or which prevented a landowner from recovering rent or mesne profits for that period, we are quite unable to accept that the adverse possessor has any legitimate interest in obtaining the windfall of acquiring title to the land itself without payment of compensation. In this regard, the position of the adverse possessor is entirely different from that of the long-leasehold tenants in James and Others , whose moral entitlement to acquire the fr eehold of houses they occupied at below market value under the Leasehold Reform Act 1967 was found to derive from the fact that they and their predecessors had not only paid a capital sum to acquire the leasehold interest but had over the years invested a considerable amount of money in the upkeep of houses which had been their homes.

14. While the general interest served by the law of adverse possession in the case of registered land was thus in our view of limited weight, the impact of the law on the registered landowner was exceptionally serious, as is graphically illustrated by the facts of the present case. Although the case falls to be examined under Article 1 of the Protocol as one concerning the control of use of land, in judging the proportionality of the measures it is in our view a highly material factor that the relevant legislative provisions went further than merely precluding the registered landowners from invoking the assistance of the courts to recover possession of their land, by depriving them of their beneficial ownership of it.

15. The Chamber, referring to the stat ements of Neuberger J and Lord Bingham, took into consideration the lack of compensation for the deprivation of property (§§ 71- 72). This is criticised by the majority of the Grand Chamber. It is pointed out not only that the Court ’ s case-law as to the need for compensation applies to “deprivations” of possessions and has no direct application to a case of “control of use”, but that a requirement of compensation in a case such as the present “would sit uneasily alongside the very concept of limitation periods whose aim is to further legal certainty by preventing a party from pursuing an action after a certain date”.

16. While it is true that the availability of compensation has principally been examined by the Court in the context of deprivations of possessions under the second sentence of Article 1, it is clear that the absence of compensation may also be of relevance to the overall proportionality of a control of use (see, for example, Immobiliare Saffi v. Italy [GC], no. 22774/93, § 57, ECHR 1999 ‑ V). However, we share the view of the majority that limitation provisions cannot easily be coupled with a requirement for compensation and that the payment of compensation does not, on the basis of the comparative material before the Court, appear to be a feature of any system of adverse possession or prescription. It is, moreover, significant that the Land Registration Act 2002, which substantially improved the position of the owner of registered land whose land was occupied by adverse possessors, did not provide for a mechanism by which compensation could be claimed or obtained.

While the absence of compensation cannot thus of itself be regarded as rendering the control of use disproportionate, the fact that the landowner received no compensation made the loss of beneficial ownership the more serious and required, in our view, particularly strong measures of protection of the registered owner ’ s property rights if a fair balance was to be preserved.

17. The majority of the C ourt argue that such procedural protection was provided. Reliance is placed on the fact that the law of adverse possession in general and the provisions which extinguished title at the end of the period of twelve years in particular were accessible to the applicant companies, as the registered landowners, and that the provisions had been in place for many years. Emphasis is also placed on the fact that the applicant companies, as any landowners, could have safeguarded their position and stopped time running by requesting rent or other payment from the occupiers for the use of the land or by commencing proceedings for its re covery (paragraphs 77 and 78 of the judgment ).

18. Although clearly correct, we do not find that either factor ensured that a fair balance was preserved or provided sufficient protection for the property rights of registered landowners. While it was open to the registered owner to argue, after the expiry of the twelve- year period, that there had not been sufficient “possession” of the land on the part of the occupier to prevent recovery of the land, no form of notification was required to be given to the owner during the currency of that period to alert him to the risk of losing his title to the land. What was lacking were effective safeguards to protect a registered landlord from losing beneficial ownership of land through oversight or inadvertence. Such safeguards were provided by the Land Registration Act 2002 which not only puts the burden on a “squatter” to give notice of his wish to apply to be regis tered as the proprietor after ten years of adverse possession, but requires special reasons to be adduced to entitle him to acquire the property where the legal owner opposes the application. The legal owner is then granted two years within which to regularise the position as, for example, by evicting the adverse possessor. The effect of the 2002 Act was, as pointed out by Judge Strauss in the case of Beaulane Properties Ltd v. Palmer , to place the burden where it should lie, namely on the party seeking to override a registered title.

19. The majority of the Court, while noting that the position of the registered owner was improved by the new legislation, attach little weight to the change in the law, holding that the provisions of the 2002 Act were not applicable in the present case which had to be judged according to the law in effect at the material time. It is further said that, in any event, legislative changes in complex areas such as land law take time to bring about and that judicial criticism could not of itself affect the conformity of the earlier provisions with the Convention.

In our view this is to underestimate the significance of the change in the law. As was noted by the Chamber, it does not necessarily follow from the fact that new rules have been introduced to provide enhanced protection for Convention rights that the previous rules were incompatible with the Convention (see, for example, Hoffmann v. Germany , no. 34045/96, § 59, 11 October 2001). However, we attach considerable importance to the fact that the amendments made by the 2002 Act represented more than a natural evolution in the law of adverse possession as it affected registered land : they marked a major change in the existing system which had been recognised, both by the Law Commission and judicially, as leading to unfairness and as having a disproportionate effect on the rights of the registered owner.

20. The Government emphasise, as a further element relevant to the assessment of proportionality, the degree of fault on the part of the applicant companies in the present case, arguing that they failed to take the most minimal steps to look after their own interests.

While it is true that in other contexts the Court has held that the question whether a fair balance has been struck under the second paragraph of Article 1 of the Protocol will depend on a number of factors, including the degree of fault or care which an applicant has displayed (see, for example, AGOSI , cited above, § 54), we cannot consider it to be a significant factor in the present case, in which the very complaint is that the system of adverse possession, as it existed before the passing of the 2002 Act, failed adequately to protect the proprietary rights of registered landowners against the loss of beneficial ownership as a result of their inadvertence or oversight.

21. In sum, we are unable to agree with the majority of the Court that the provisions of the 1925 and 1980 Acts, as they applied to registered owners of land and whose application in the present case was variously described by the national judges as “draconian”, “unjust”, “illogical” and “disproportionate”, struck a fair balance between the rights of the owner s and any general interest served. In being deprived of their beneficial ownership of the land of which they were the registered owners, the applicant companies were in our view required to bear an individual and excessive burden such that their rights under Article 1 of Protocol No. 1 were violated.