Does acquisitive prescription violate fundamental human rights?

Abstract

Through the study of the various requisites of acquisitive prescription, and the way in which this doctrine has been interpreted by both the local courts and the ECtHR, it was examined whether acquisitive prescription violates the fundamental right to the enjoyment of possessions. Chapter one focused on the general protection of property, both under the Maltese Constitution and the Convention. The way in which the relevant articles have been applied and interpreted was examined. Lastly, this Chapter discussed the way in which Article 1 of Protocol No. 1 to the Convention applies to acquisitive prescription. Chapter two deals mainly with the Pye judgement and its various rulings. Focus was placed on the way the different courts have interpreted the notion of adverse possession in relation to this case. It was interesting to examine the different conclusions the different courts have arrived at, even though ruling on the same matter. The final part of the chapter discussed acquisitive prescription as a control of use. Chapter three dealt with the way the interpretations and conclusions arrived at in Pye could be applied to the Maltese system of acquisitive prescription. It was also examined whether this doctrine and the system of land registration which is adopted in Malta are in contradiction. Does Malta need to make a change with regards to registered land? Chapter four discussed briefly the ten year and thirty-year acquisitive prescription and their special requisites. Focus was placed on the material and intentional elements which the possessor needs to possess. Possession, with all its special requisites, was also discussed. Chapter 5 then discussed adverse possession as developed in both continental law and common law countries. The basic elements involved in each system were discussed. The Chapter concluded by a brief discussion of the instances which interrupt prescription, together with the remedies available to the original owner. It was concluded that even though the doctrine of acquisitive prescription could be viewed as placing a disproportionate burden on the owner, it still plays and important role in society. Notwithstanding this, there still exists room for improvement, such as providing the owner with adequate compensation, or the introduction of penalties for trespassing.