Adverse possession can be founded on acts of criminal trespass

How do the statutory provisions as to adverse possession of registered land and the criminal offence of squatting interact? The High Court decided the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO 2012) criminalises trespass without affecting the operation of adverse possession.

Original news

Best v Chief Land Registrar [2014] EWHC 1370 (Admin)

A claim for judicial review raised, for the first time, the important question of whether the criminalising of trespass by ‘living in’ a residential building, pursuant to LASPO 2012, s 144(1) has prevented time running for applications for registration of title by adverse possession to registered land.

The Chief Land Registrar had decided that it does. Mr Best, claiming adverse possession of the property in question, contended that LASPO 2012, s 144 was never intended to have that effect on the registration of title and should not be construed so that it did.

On 27 November 2012, Mr Best applied to register title to the relevant property on the basis that he had been in adverse possession for the necessary period of ten years ending on the date of the application. His accompanying statutory declaration stated that in 1997 he had been working on a nearby property, the owner of which had told him that the last occupier of the then empty and vandalised property had died and that he had not seen her son since 1996.

He entered the property and did extensive work to it intending to make it his permanent residence. He moved in at the end of January 2012. He said that he had treated the house as his own since 2001. There had been no disputes about his possession of the property. However, he occupied it without anyone's consent. In reality he was a trespasser—he had been living in the building in breach of the criminal law as from 1 September 2012, when LASPO 2012, s 144 came into force.

On 10 December 2012, the Chief Land Registrar told Mr Best that he was going to cancel the application—in effect he was going to refuse it—because LASPO 2012, s 144 prevented Mr Best relying on any period of adverse possession which involved a criminal offence to establish the basis for an application for registration as the proprietor. Accordingly he could not satisfy the legislation which impliedly required that the applicant's possession should not have constituted a criminal offence for any part of the ten year period of adverse possession relied on. The application was therefore substantially defective.

Further submissions were considered, but by a final decision dated 11 February 2013—the decision challenged in the judicial review proceedings—the application was cancelled.

What is the law in this area?

Adverse possession

The Land Registration Act 2002 (LRA 2002) came into force on 13 October 2003 and, subject to transitional provisions, radically changed law and practice relating to the adverse possession of registered land. To claim title by adverse possession, the squatter must show that he has been in adverse possession for at least ten years.

Residential buildings—criminal offence of squatting

LASPO 2012 criminalises residential squatting. The offence applies where:

  • a person is in a residential building as a trespasser having entered it as a trespasser
  • the person knows or ought to know that he or she is a trespasser and
  • the person is living in the building or intends to live there for any period

The provision came into force 1 September 2012, but all residential squatters are caught as it is retrospective.

Smith

The Chief Land Registrar put very considerable weight on the decision in Smith, a case on asserted adverse possession of a highway by obstruction contrary to the Highways Act 1980. In Smith, the High Court confirmed that adverse possession cannot be based on an unlawful act, such as obstructing a highway.

What did the High Court decide?

Adverse possession could be founded effectively on acts of criminal trespass.

Mr Best’s judicial review application succeeded and the decision of the Chief Land Registrar was quashed. His application now has to proceed through the next stage in LRA 2002, Sch 6.

Background to the legislation

The background to LRA 2002 was important. It had its origins in a joint Law Commission and HM Land Registry Consultative Paper 'Land Registration for the Twenty-First Century' (Law Com 254) and then in Law Commission recommendations (Law Com 271). The joint paper was silent about the effect, if any, which any acts of criminal trespass, such as there might have been in 2002 and for years before that, could by themselves have on the acquisition of title by adverse possession.

Nor did LASPO 2012 contain any transitional provisions for those who might be entitled to make an application for registration of title under LRA 2002. It contained no saving provision for those who had been in possession for years without any attempt to dispossess them, let alone by any court or police action.

The Land Registry did raise the issue in its response to consultation on LASPO 2012, recognising that a new offence of squatting covering all buildings may have an effect on the law of adverse possession. However, the ‘Proposals for further action’ in the response paper simply did not address adverse possession. The explanatory notes were ‘striking for the absence of any consideration of any possible effect which the Act might have on the acquisition of title by adverse possession or on the adverse possessor's entitlement to registration of title to registered land'. Nor was there any Ministerial statement to which reference could be made.

However, the High Court confirmed it was clear that the mischief behind LASPO 2012, s 144 was not the difficulty of removing those who had squatted unchallenged in domestic property for sufficient years to raise a claim based on adverse possession. The mischief struck at was the difficulty faced by the householder, and particularly by the occupying householder, dispossessed by squatters, removing them without police assistance and with only unduly slow and cumbersome civil processes.

Public policy

The High Court confirmed that no case had been cited to it addressing the scope of adverse possession over the many years in which the concept had been developed by the common law and applied by the courts. For years, trespass on certain areas of land had been a criminal offence—principally land owned by statutory bodies for the purpose of their statutory functions.

The court accepted that rights should not be derived from criminal acts. There was a general and fundamental principle of public policy that a person should not be entitled to take advantage of his own criminal acts to create rights to which the court should then give effect. Most enunciations of the policy are found in the context of the enforcement of contractual rights. However, the principle also readily found expression in a principle of statutory construction—Parliament would not have intended, in the absence of express provision, that a person should benefit, or obtain rights, from his crime.

However, it was not an absolute rule or principle, unyielding to any circumstance. It was the starting point and not necessarily the end point. That principle of public policy may yield to competing public policy interests, the greater advancement of which are imputed to Parliament's intention in any specific statute.

However, the question here was more limited than whether the court should enforce rights created by an unlawful act, or interpret an Act in such a way as to give effect to such an act. It was whether the common law concept of adverse possession by trespass excluded criminal trespass from its effects.

LRA 2002 provided a comprehensive and carefully balanced statutory answer to the problem of adverse possession in relation to registered land, using the common law concept of adverse possession. The Law Commission's proposals had dealt with concerns about the undue favouring of the trespasser which existed before. Its proposals had been accepted without alteration by Parliament.

There was no evidence that Parliament ever actually considered the issue of adverse possession or that it ever thought that there was a mischief which had to be dealt with either way in relation to the effect of LASPO 2012 on adverse possession.

Parliament made the correct assumption that adverse possession could be founded effectively on acts of criminal trespass.

The court could see nothing in the cases suggesting that criminal trespass could not lead to an adverse possession claim until Smith, probably because the owner of the land removed the trespasser in good time. Such authority as there was suggested the contrary.

Smith—wrongly decided

The High Court’s finding in the High Court decision in Smith—that adverse possession cannot be based on an unlawful act, such as obstructing a highway—was wrong.

On appeal, the Court of Appeal held that the public rights over a highway could not be extinguished by adverse possession— they would survive the acts necessary to found what would otherwise be acts of adverse possession. It did not find it necessary to deal with the question of whether the illegality of the acts of adverse possession also prevented reliance on them.

The simple principle that where the act of possession is an offence, no adverse possession can arise, was incorrect. It ignored the countervailing public interest and missed the point of Bakewell (a prescription case) which was by far the strongest authority. The rationale for the Bakewell decision was that one fundamental public policy may have to yield to a countervailing public interest. In Bakewell, that public interest lay in providing a lawful basis for acts long continued without objection, even if without consent - precisely the same countervailing interest which justified adverse possession, even if it involved the commission of an offence, enabling the trespasser and criminal to rely on his wrong doing. A similar countervailing public interest applies—title should not be left uncertain in the face of long possession to which there had been no adverse reaction even if no consent.

Parliament’s intention

The purpose of LASPO 2012, s 144 was not to:

‘throw a spanner into the delicate workings of the 2002 Act, with random effects on the operation of adverse possession, all without a backward glance’.

If Parliament had thought adverse possession would be affected by enacting LASPO 2012, s 144, it would surely have given some thought to the consequences and made some provision for them, particularly given the form of LASPO 2012, s 144—it is only trespass to the building which is affected by criminalisation and not the curtilage. It also draws no distinction between the effect on those who have just squatted, those who neared ten years squatting at the commencement date and those who could have applied for registration at that date.

LASPO 2012 criminalises trespass without affecting the operation of adverse possession to registered and unregistered land. This means the criminal law had a restricted scope, tackling a need for house owners to receive a swifter remedy and more forceful help than hitherto in dealing with what were distressing and pressing circumstances, in which the law appeared to give considerable protection to those who did not merit it.

Result

The Chief Land Registrar's decision was founded on an error of law as to the effect of LASPO 2012, s 144 on adverse possession.

Other issues

The High Court also decided that, for the purposes of LASPO 2012, s 144, acts done in the curtilage should be treated as incidental to any ‘living in’ the building.

While not necessary to decide, the High Court also found (in case it was wrong in its decision) that the European Convention on Human Rights, art 8 (ECHR) was not engaged by cancelling the adverse possession application and even if it was, there was no incompatibility between LASPO 2012, s 144 and ECHR art 8 or Protocol I, art 1.

What are the implications of the decision?

Some thought Smith had given a definitive answer to this issue, while other commentators suggested it had not. The latter proved correct.

The result is that the creation of the criminal offence of squatting in a residential building does not stop time running for adverse possession claims.

Landowners may well see this as bad news. However, the reality is that the statutory regimes are aimed at two very different things. As the High Court pointed out:

‘If no action has been taken over the period of ten or twelve years to remove squatters, criminalisation for any part of it notwithstanding, it is difficult to see what purpose is served by preventing applications for registration going through the statutory procedure in Schedule 6 of the 2002 Act. Those notified of the application could still object and the appropriate procedures would have to be followed through. Their statutory protection is not one whit diminished; indeed, it is enhanced because the effect of the acts of trespass being criminal may make it the more likely that steps would be taken to remove the trespassers, giving more power to the owner to invoke the assistance of the police.’

This article was written by Joanna Bhatia, solicitor in the Lexis®PSL Property team and was first published in LexisPSL Property on 8 May 2014. Click here for a free one week trial of Lexis®PSL Property.  

Filed Under: Property

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