England: trespassing in residential premises has been criminalised. Can possession amounting to criminal trespass be relied on in an adverse possession claim?

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

This English case looks at whether a claim to adverse possession can be based on possession which amounted to a criminal offence (and not merely the tort of trespass). Although it arose in the context of the scheme contained in schedule 6 to the Land Registration Act 2002, the court made it clear that the same principles would apply to a claim concerning unregistered land and relying on the Limitation Act.

Section 144(1) of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 criminalised trespass by living in a residential building which had been entered as a trespasser. B had moved into an empty house the owner of which had died. He entered in 2000. In 2012, he applied to HM Land Registry to be registered as proprietor. He claimed that he had been in adverse possession “for the period of ten years ending on the date of the application” as required by Schedule 6 to the Land Registration Act 2002. The Chief Land Registrar rejected the claim on the basis that the possession relied upon amounted to a criminal offence and that it could not, therefore, be relied upon. B sought judicial review of this decision.

The Chief Land Registrar’s argument was that there is a general principle to the effect that no enforceable rights could be derived from the criminal acts of the person who sought to enforce them. B’s primary, and successful, argument was that section 144(1) was not intended to have any impact on the entirely separate scheme concerning adverse possession in Schedule 6 to the Land Registration Act 2002.

Ouseley J. explained that the mischief that section 144 sought to eliminate 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.’ ([29])

Parliament did not intend section 144 to affect the interpretation of Schedule 6 to the Land Registration Act 2002. Had it intended this, one would have expected Parliament to make this clear and to spell out the intended impact on the scheme in the Land Registration Act 2002 ([80]).

The fact that section 144 caught only certain types of acts of possession (‘living in’) in respect of a specific type of property (‘residential premises’) ([81] – [83]) was a further sign that s. 144 was not intended to have any effect on Schedule 6 or the general law of adverse possession.

These restrictions on the scope of s.144  indicate its true target: ‘They mean that the criminal law has 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.’ ([83]).

The protections offered to registered owners by Schedule 6 are not weakened by refusing to adopt the interpretation argued for by the Chief Land Registrar ([84]). Section 144 is not weakened either, since the squatter can still face criminal charges in respect of possession before becoming registered as proprietor ([85]).

Thus:

‘Parliament should be taken to have thought that the public policy advantages of adverse possession at common law meant that the mere fact that the adverse possession was based on criminal trespass did not and should not preclude a successful claim to adverse possession.’ ([86]).

The Chief Land Registrar’s decision was quashed and B was able to pursue his claim to be registered. The claim could now proceed to the next stage in accordance with the machinery contained in Schedule 6 to the Land Registration Act 2002.

Michael Lower

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