DISSENTING OPINION OF JUDGE LOUCAIDES JOINED BY JUDGE KOVLER

I am unable to agree with the majority in this case that there has been no violation of Article 1 of Protocol No. 1. The question is whether the existence of a twelve-year statutory limitation period for actions for recovery of land is compatible with the Convention , bearing in mind that this limitation has as a consequence the deprivation of ownership of the registered owner of the land in case s where he has been out of possession for that entire period and a stranger has been in possession. In such case s the owner ’ s title is extinguished and the stranger acquires a title which is good against all the world, including the former owner (see paragraph 27 ) .

There are two factors that have to be examined in order to answer this question.

The first is whether the twelve-year limitation period as such pursues a legitimate aim in the general interest. And t he second is whether , assuming there is a legitim ate aim, the interference with the right of property is proportionate to the aim pursued.

Where there is no land survey and title of ownership is not registered in a land registry – as may be the case at certain times and in certain countries – this institution of adverse possession leading to acquisition of title could undoubtedly be justified on the ground of avoiding uncertainty of land ownership. However, when and where a land registry has been established and ownership of land c an easily be ascertained through inspection of the registration of title deeds, I personally have great difficulty in accepting that adverse possession could serve any general interest. In this respect I fully endorse the following opinion of Lord Bingham:

“ ... In the case of unregistered land, and in the days before registration became the norm, such a result could no doubt be justified as avoiding protracted uncertainty where the title to land lay. But where land is registered it is difficult to see any justification for a legal rule which compels such an apparently unjust result, and even harder to see why the party gaining title should not be required to pay some compensation at least to the party losing it. ... ” (see paragraph 21 )

The argument was put forward that another possible legitimate aim of such an institution would be to encourage landowners to exploit, improve, or make use of their land. I cannot find this acceptable, first of all because such encouragement may be achieved by other less onerous means such as taxation, or the creation of incentives, and secondly I cannot accept that the general interest connected with that a im can reasonably extend to depriving a registered landowner of his beneficial title to the land except by a proper process of compulsory acq uisition for fair compensation.

In determining whether or not adverse possession now serves a legitimate aim, I am not bound by what the p arties suggest.

The majority , firstly, referred to comparative material to the effect that a large number of member S tates possess some formal mechanism for transferring title in accordance with principles similar to a dverse possession in the common- law systems , and that such transfer is effected without the payment of compensation to the original owner. These mechanisms in other member States may be explained by the absence of land registration or may be remnants of an archaic system. I n any event , a n unsatisfactory system in certain countries does not justify retaining such a system elsewhere . Secondly, the majority invoked the fact that the amendments to the system of adverse possession contained in the Land Registration Act 2002 did not abolish the relevant provisions. However n o clear grounds were given for such a decision, and more particularly for the necessity of maintaining the present system of adverse possession . Thirdly, the majority argued that i t must be open to the legislature to attach more weight to lengthy, unchallenged possession than to the formal fact of registration. Again I do not understand the logic of this approach and I certainly do not find it convincing. I do not see how illegal possession can prevail over legitimate ownership ( de facto v ersus de jure ).

Taking everything into consideration, I find that the aim of the interference with the applicant com p anies ’ property lack s reasonable foundation. I may add in this respect that such a system ( a) shows disrespect for the legitimate rights and expectations of the registered property owners which include the possibility of keeping their property unused for development at a more appropriate time , when financially and otherwise they are ready to proceed with such development , or to maintain their property as security for their children or grandchildren; and ( b) encourages illegal possession of property and the growth of squatting.

I could stop t here, being confident that there is no legitimate objective of public interest behind the provisions in question. I might add that personally I am inclined to take the view that the application of the principle of adv erse possession in this case does not, for the purposes of Article 1 of Protocol N o . 1, fall within the concept of control of use of land, bu t is a case of deprivation of possessions subject to certain conditions.

In any event, even assuming that there was a public interest to be served by the deprivation of ownership through adverse possession, the conditions for the implementation of such deprivation ( limitation period of only twelve years , loss of title, lack of any compensation) render the measure complet ely disproportionate .

In simple terms this system of adverse possession looks as if it is intended to punish a registered lawful owner of land for not showing sufficient interest in his property and for not sufficiently pursuing a squatter, who as a result is rewarded by gaining title to the property. And in this respect I fu lly endorse the statement of Mr Justice Neuberger when he said that the fact that an owner who had sat on his rights for twelve years should be deprived of the land was “illogical and disproportionate” (see paragraph 16).

In interpreting and applying Article 1 of Protocol No. 1 in this case, I was guided by the rule that the principle of the rule of l aw is inherent in all the Articles of the Convention (see Amuur v. France , 25 June 1996, § 50, Reports of Judgments and Decisions 1996 ‑ III ).

In the circumstances I find that there has been a violation of Article 1 of Protocol N o . 1 in this case.

[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.