Courts serve owners humble ‘Pye’

Apr 9 2008 by Richard Freeman-Wallace for The Journal

THREE slices of ‘Pye’ have been served up by the courts in recent months, with adverse possession cases applying the decisions from the landmark 2007 case brought by J A Pye.

The Pye case concerned £10m of land lost to squatters, when housebuilder JA Pye’s seven-year attempt to sue the government was finally quashed by the European Court last year.

One of the recent cases which rely on parts of the Pye judgment is Roberts v Swangrove Estates Limited [2008]. The two parties and the Crown Estate Commissioners all claimed to have acquired titles to thousands of acres of foreshore and seabed of the River Severn, the latter parties by adverse possession.

Roberts argued on appeal that the Crown could not acquire title by adverse possession except when it entered the land by lawful means. Swangrove and the Crown Estate dredged the river bed and used the land for fishing, shooting and other activities, which they said constituted adverse possession. Their claims were accepted by the court.

The Pye principles were also applied in the case of Ofulue & Other v Bossert [2008]. In 1981, the Bosserts were let into a property owned by Mr Ofulue, who had gone to live in Nigeria.

When Mr Ofulue returned in 1983 he found the Bosserts in occupation, and told them to leave, but they refused. Mr Ofulue issued a summons against them but the Court of Appeal decided in favour of the Bosserts, asserting that they had acquired legal title to the property by adverse possession.

In the third case, Ashe v National Westminster Bank plc, the bank appealed against a decision to quash a second legal charge in their favour over a property. The house had been security for facilities provided to a man who was later made bankrupt, and although the bank wrote demanding repayment, it took no action to enforce the security.

The trustee in bankruptcy declared that given that the last payment to the bank had been made over 12 years ago, the bank had no rights to recover the loan secured by the mortgage. The court agreed and extinguished the mortgage. Inaction on the part of the bank to exercise its rights resulted in their extinction under the legal charge after 12 years.

Richard Freeman-Wallace is head of property at Watson Burton LLP.