Way back when s.144 LASPO 2012 was first proposed, I noted that one of the unaddressed questions (indeed a question that nobody even thought to consider) was how what because s.144 would interact with statute and case law on adverse possession. Now we have an answer (at least pro tem)

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

The brief facts asserted by Mr Best where that he had noticed an empty and vandalised property while working on a property next door in 1997. He had been told that the owner had died and that a son had not been seen for years.

Mr Best entered the property, and did work to it, notably repairing the roof in 2000, clearing the garden for £2000, and taking other steps to make it wind and watertight. As time went on, he replaced ceilings and skirting boards, and electric and heating fitments; he plastered and painted walls. He did this 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. But he occupied it without anyone’s consent. Mr Best asserts that he is a trespasser in the property; and although Mr Rainey QC for Mr Best was reluctant to admit it, in reality as a trespasser, Mr Best has been living in the building in breach of the criminal law as from 1 September 2012, when s144 LASPOA came into force.

Mr B sought to register title through adverse possession in November 2012, the application being on the basis of the 10 years required by Schedule 6 paragraph 1 to the Land Registration Act 2002. The Chief Land Registrar decided (and upheld a decision) that the application would be cancelled on the basis that:

the effect of s144 LASPOA prevented the Claimant 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 Schedule 6 of the LRA 2002, 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.

Mr B made a claim for judicial review of that decision. Rather reluctantly, his counsel put forward the submission that he was a trespasser and indeed, from September 2012, as a criminal trespasser residing in the property.

Mr B’s argument was that:

s144 LASPOA has no effect on the operation of the carefully structured and balanced provisions of the 2002 Act, and that the Defendant erred in law in so treating it. This is either because it has no such effect in any circumstances, or because an offence only has that effect where the same act committed by the legal owner would also be a crime, which could not be the position with criminal trespass under s144, or where the owner had no power to consent to the act which would have made it lawful. That, again, could not be the position under s144.

Mr Rainey’s second contention is that as s144 only criminalises “living in” residential premises, it does not affect other physical acts of adverse possession being sufficient, such as securing doors and windows, being a sufficient basis for an application for registration. Further, Mr Best had not lost his intention to possess, and could rely on his pre – LASPOA acts to succeed.

Thirdly, s.144 should be read, in accordance with the HRA, to avoid a breach of Art 8, or Art 1 Prot 1. This could mean reading “as not affecting applications to register title, or as not preventing “living in” a house amounting to adverse possession; the 2012 Act could be interpreted so as not to apply to abandoned buildings. Schedule 6 to the 2002 Act, alternatively, could be read as permitting 10 years’ adverse possession, accrued before LASPOA came in to force on 1 September 2012, to suffice”.

Fourthly, if all else failed, s.144 should be declared incompatible with ECHR “on the grounds that it criminalised residence in what was the Claimant’s home, one in respect of which, as at 1 September 2012, he was already entitled to apply for registration as proprietor”.

The Chief Land Registrar argued from the “general principle that no system of jurisprudence should create, and no judicial system should enforce, rights which derive from the criminal acts of the person who seeks to rely on them”.

ON the first point, the interrelation of s.144 criminalisation and LRA 2002, the Admin Court went through an extended consideration on how far the principle of not enforcing rights arising from criminal acts went. While “There is to my mind 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 a Court should then give effect”, the situation was not necessarily such where the issue was s.144:

The public interests which lie behind enabling a trespasser to acquire title by adverse possession, and, after a shorter period to apply for registration as the proprietor of registered land are clear. Of course, the enactment of s144 of the 2012 Act was not the first time when an act of trespass was criminalised. But the public policy purposes behind the operation of the Limitation Act are not diminished by the fact that an act of trespass may be a crime; it is merely that there is a stronger countervailing public interest in preventing a criminal taking advantage of his crime than there is preventing a tortfeasor taking advantage of his tort.

The Registrar relied heavily on the first instance High Court decision in R (Smith) v Land Registry [2009] EWHC 328 (Admin) [our report]. Part of the first instance reasoning in Smith was “it was an offence under s137 of the Highways Act 1980 to obstruct the highway, and those acts which were required to prove adverse possession, were it otherwise legally possible, would inevitably amount to an offence of obstruction. Adverse possession could not be founded on illegal acts, which no landowner or highway authority could licence” (see para 14 of Smith). Mr B argued that this meant that adverse possession could not extinguish the right to use the highway, which would indeed be unlawful even by the paper owner, but did not mean that adverse possession per se would be affected, absent the highway rights.

The Admin Court considered Bakewell Management Ltd v Brandwood [2004] UKHL 14 as a foundation of Smith. On prescriptive rights, the House of Lords found that “a prescriptive right, or a right under the lost modern grant fiction, can be obtained by long use that throughout was illegal in the sense of bring tortious. That is how prescription operates. Public policy does not prevent conduct illegal in that sense from leading to the acquisition of property rights” [para 46].

The Admin Court found:

I accept that Parliament must be taken to have been aware by 2011 of the decision in Smith. But a Court of Appeal decision solely based on the effect of the existence of public rights of way over the land, and not endorsing or rejecting what HHJ Pelling said about the effect of the trespass by highway obstruction being an offence, should not be taken as showing that Parliament must have realised that the past and future effect of criminalising trespass was that title by adverse possession could not then be obtained.

Smith however does hold that criminal trespass cannot found an adverse possession claim. Mr Karas is right that I have to disagree with that limb of HHJ Pelling’s decision, at least as a proposition applicable to adverse possession, if Mr Rainey is to succeed. But I do disagree with it. I have had the benefit of fuller argument. I am dealing with s144 and not the Highways Act 1980, which throws the issue of what the position was before the 2012 Act into sharper focus. The position of public highways is protected by the first limb of HHJ Pelling’s decision and by the basis upon which the Court of Appeal upheld it. What is perhaps more instructive, but not over weighty, is that the Court of Appeal did not regard the criminal limb of his judgment as the obvious answer or as obviously right.

The issue is I think more complex than the simple application of one fundamental principle of public policy. I do not think that the simple principle that where the act of possession is an offence, no adverse possession can arise, is correct. It ignores the countervailing public interest, and misses the point of what is, to my mind, by far the strongest authority: Bakewell.

And on parliamentary intention, it followed that:

[83] Those restrictions, which as I have said could have random and arbitrary effects on adverse possession claims, do not appear to have received any Parliamentary consideration or provisions, notwithstanding their effect, if Mr Karas is right, on the operation of the 2002 Act, and on title to unregistered land. However, they make good sense if the Act criminalises trespass without affecting the operation of adverse possession to registered and unregistered land. 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.
[…]
[86] 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. Before any claim could arise in reliance on adverse possession, ten or twelve years of adverse possession would have had to pass without effective action by owner or by an enforcement authority, whether in civil or criminal proceedings.

In short, the very unthought-through aspects of s.144 (‘residential property’ only, living in property, not simply occupying’ etc.) here are read as a parliamentary intention not to exclude adverse possession.

On other issues, did ‘possession’ for the purposes of LRA 2002 mean ‘living in’ for the purposes of LASPO s.144? The Court broadly accepted the approach put forward by the Chief Registrar:

activities which were part and parcel of living in a building or were incidental to it were part of “living in” the building, and could not give rise to non-criminal adverse possession of the building. If squatting in the garden were not criminalised by the 2012 Act, but in any given case was incidental to “living in” the house, it could not be relied on separately from the criminal “living in” the house. The issue did not arise in this case of someone who only “lived in” the curtilage and not in the house, and whether that could lead to a split in the title. If an application were made in respect of the curtilage alone, it would have to be considered, but no such application has been made. No offence would be committed by someone who did not live in the house but possessed it through acts of repair, maintenance and exclusion but intending to use it for tenants. So that form of adverse possession could suffice for an application under Schedule 6.

However this was not decided, “I do not regard it as right or necessary to decide what acts, if done other than incidentally to “living in”, would constitute lawful acts of possession”.

On the Art 8 and A1 P1 ground, there was no incompatibility and reading down did not arise.

In any event, the Claimant never had possession in the sense protected by the ECHR: he had to have possession sufficiently established to amount to a legitimate expectation of obtaining effective enjoyment of a property right. But the system of registration of title precluded any such legitimate expectation arising simply through the passage of time; he had no right to title even after its expiry. The relevant period was the ten years before the application. Until that had passed without possession being a criminal offence, he could have no more than a hope that he would complete ten years tortious but not illegal possession. After that, he had the right to make an application, but no right to succeed. Nor did he have any right to prevent Parliament changing the conditions required for registration of title to land he did not own, but which someone else did.

It is worth noting the chutzpah of the submissions by Counsel for the Secretary of State for Justice:

Mr Forsdick, for the Secretary of State for Justice, submitted that the purpose of s144 was clear. It had been to remove the problems and delays associated with s7 of the Criminal Law Act 1977, which had criminalised squatting by a person who entered as a trespasser and failed to leave on being required to do so by or on behalf of the displaced residential occupier or a protected intending occupier. […] No formal requirement to leave was required. It was no longer a defence for the squatter to show reasonable cause for believing that the request was not made by someone entitled to make it. The police could intervene without the need for some other offence such as criminal damage or burglary. Squatting had a serious impact on the owner and lawful occupier of property, and could prevent houses becoming available for those in need.

It is fair to say that this supposed rationale – the delays occasioned by s.7 CLA – was not exactly (or indeed loosely) addressed in the consultation or Parliamentary debate, apart from Mike Weatherley MP blethering on about ‘Magistrate’s Orders’ in letters to the papers.

The decision of the Chief Land registrar was quashed and Mr B’s application proceeded to the next stage under Schedule 6 LRA.