The media response, carefully directed by spin, has been to focus on squatting and, all too predictably, on ‘protecting homeowners’ from squatters. That this response is wholly and perhaps wilfully inaccurate about the current law is something we’ve addressed before. Of course, squatting is threatened by the proposals, but the ramifications run deeper and wider.

The law of trespass to land has a long and deeply political history, too long to be examined here. But it has always been at the stress points of social history that it has come to the fore, where access to land and a place to live have been at stake. The Diggers of 1649 might stand as the beginning of organised squatting, but it is the Acts of Enclosure between 1750 and 1850, seeing some 14 million acres of common and small holding land passed into private ownership, that inevitably brought presence on land and ownership of the land into frequent conflict.

The 20th century saw both political and self-help trespass. As a direct challenge to ownership as exclusivity, there was the mass trespass of Kinder Scout in 1932, where thousands of ramblers trespassed on private moorland in the Peak District. There were violent scuffles with gamekeepers and 6 ramblers arrested, but arguably national parks and rights of way resulted many years later. Then there is the occupation of military camps, empty homes and hotels in bombed out London by some 50,000 demobbed soldiers and their families in 1946, commended by the Daily Mail as “robust common sense”, praising their ability “to take matters quietly but firmly into their own hands [...] a refreshing example of what ordinary people can do when they put their minds to it”.

In the 1960s and 1970s, in the face of another housing crisis, there were organised occupations of abandoned properties, many of them local authority owned. Long term occupations were ‘legitimised’ by licence arrangements for so-called short life properties. These ‘short life’ arrangements endured for over 30 years and are still being unwound. One legacy of these arrangements was Kay v Lambeth and Kay v UK, cases which have defined the application of human rights law to people losing their homes.

But beneath all this recorded and wikipedia’d history, and largely unremarked, save for the occasional tabloid headline, is another story, that of Gypsies and travellers. I’ll come back to this.

From this history, it should not be surprising that by and large the current law classifies trespass to land as a civil matter. It is a tort, so damages follow from the actual loss or injury to the landowner. The simple presence of someone on land owned by someone else, without more, is not a cause of loss.

Before I turn to the Government’s proposals, it is sadly necessary to recap the current law in England and Wales. Much of the public rationale for changing the law as it has appeared in the Daily and Sunday Telegraph, the Mail and on television has been based upon calls to protect homeowners from squatters. As I’ve previously discussed, this is simply wrong. Whether the error arises from lazy ignorance or a deliberate obfuscation is another matter.

It is a criminal offence under section 7 of the Criminal Law Act 1977 to occupy a property where there is a ‘displaced residential occupier’ (where the property is someone’s home) or a ‘Protected Intended Occupier’ (someone about to move in to live there). In neither case is a possession order required. The displaced/protected occupier can use force to enter the property and reasonable force to remove the trespassers. The police can arrest anyone remaining in the property after the trespasser has been informed that there is a displaced/protected occupier.

Where there is no displaced or protected intended occupier, where the property is not someone’s home, the person/body with the right to the land does have the right to use ‘reasonable force’ to regain possession. This is rarely used in practice, as exceeding a ‘reasonable’ level of force lays the property owner open to potential claims. In addition, forcing entry to a dwelling without a possession order runs the risk of being a criminal offence.

More usually, the person with the right to the property will need to make a civil claim for possession. In order to speed up the process, an application for an Interim Possession Order can be made and the IPO obtained in a few days. Once served, the trespassers have 24 hours to vacate or face arrest. Stories about it taking many weeks to evict trespassers are in large part down to the failure of property owners to take the correct steps, although the pressure on the courts and court bailiffs can delay matters.

If the trespasser has caused any damage to the property, or has used the utility supplies, these are criminal offences and the trespasser can be arrested for them.

Where the trespasser is on public land (owned by a local authority or other state body), the body has to bring possession proceedings, but can also seek an injunction banning the trespassers from the land, under threat of arrest and committal for contempt of court. The body can seek a pre-emptive injunction, banning the trespassers from other areas of land owned by the body to which it appears the trespassers are likely to move.

So, the interests of homeowners are currently keenly protected and there is a range of remedies available for other property owners. What then is the purpose of the Government’s proposals?

The proposal to remove legal aid from trespassers gives some clues. Squatters of houses don’t get legal aid now, or only very rarely. Legal aid is only available where there is an arguable defence and in possession proceedings against squatters there is no such defence, apart from the occasions where the property owner fails to fulfil the technicalities. Even that only buys time. All I have heard of is the very occasional instance of assistance through a court duty scheme, at a cost to the legal aid fund of £80 a time. So there are no costs savings to be made by removing legal aid from squatters and the removal of legal aid will frankly make little or no difference in virtually all proceedings against squatters.

However, one group will be significantly affected by the removal of legal aid from trespassers: gypsies and travellers on unauthorised sites or parked up on public land, usually in situations where no authorised sites are available. Some 25% of the Gypsy and traveller population who live in caravans do not live on authorised sites. This is a population which in large part has no option but to trespass.

In many cases, defences under article 8 of the European Convention on Human Rights have been raised to possession claims. The Community Law Partnership, who run a specialist Gypsy and traveller unit, estimate that some 75% of the cases that they currently advise on would have legal aid removed under this proposal. In this context, it is notable that the Ministry of Justice equality impact assessment makes no mention of Gypsies or Irish Travellers at all.

That it is this group that is the primary target of the proposed reforms would seem clear when one recalls that before the last election, the Conservatives proposed criminalisation of intentional trespass as an adjunct to the removal of the regional development plans, which imposed requirements on Local Authorities to identify and provide new sites. At that time, it wasn’t surrounded by all the briefed brouhaha about squatters, but was clearly aimed at travellers.

Many others would be likely to be caught by criminalising trespass. We have not yet seen details, but it seems likely to follow the earlier proposal to create an offence of ‘intentional trespass’, committed when trespassers are asked but fail to leave. This would encompass virtually any presence on land without permission, save for former tenants or possibly licencees. Trespass would become a criminal offence regardless of any damage or lack of it caused to the property owner.

It is hard to imagine any form of drafting that would not criminalise any contemporary form of the Kinder Scout trespass, or direct action protest occupations.

There is also the question of the impact on the current law of adverse possession. As that requires occupation while knowing that one has no right to occupy and against the rights of the property owner, can it survive the criminalisation of the occupation?

Beneath the headlines about Guy Ritchie being inconvenienced by squatters and about distressed (but wholly illusory) homeowners are proposals which will have a damaging effect on a vulnerable and disadvantaged community and a chilling impact on protests by occupation. All this for the ostensible purpose of saving land owners a couple of weeks in time and the limited cost of court proceedings.

Still, it is a broadsheet newspaper, with small print, a serif typeface and the occasional long word, so it has pretensions to being the kind of paper that writes about fairly important things and does so, by and large, accurately. Of course we can discount the comment section, but the news on those big broadsheet pages is different, surely?

I didn’t want to have to do another ‘media reports housing law badly’ naughty step so soon, really I didn’t. But the Telegraph and Ken Clarke’s merry band of ‘senior sources’ at the MoJ have driven me to it.

This time, we are to be reassured that big Ken is taking tough steps to rid us of the plague of squatters who are forcing millionaires out of their homes, then occupying them for 10 years and claiming adverse possession. No such slippery behaviour and legal loophole is going to get past our Ken, and the Telegraph is here to tell us why new laws are needed and how the proposed new law differs from the old.

But this time, unlike the Daily Mail, we have by-lined journalists to be rude about: Tom Whitehead ‘home affairs editor’ and Peter Hutchinson.

Let us start with Tom Whitehead’s explanation of why a change in the law is needed, under the headline ‘Squatting to be made illegal’.

The new law will end the “nightmare” of home owners having to fight lengthy legal battles in the courts in order to evict squatters. Instead the police will be able to force entry and arrest anyone who has occupied a property.

There are an estimated 100,000 incidents of squatting every year with victims including Guy Ritchie, the film director. [...]

One squatter group, known as The Really Free School, has occupied a series of properties in London, including a building in Bloomsbury Square belonging to an antiques expert and a £6 million house owned by Mr Ritchie. Then they took over an empty pub near Oxford Street before moving on to another near Leicester Square.

Earlier this year, businessman John Hamilton-Brown was reduced to begging through his own letterbox for squatters to leave his £1 million home.

In 2009 squatters moved into David Blunkett’s former grace and favour mansion in central London while others took over a £33 million house close to Nigella Lawson’s home in Eaton Square, central London.

So, why are millionaires being reduced to begging through their own letter boxes? Why is Nigella Lawson having to be troubled by having a house near her home taken over?
Because:

Squatting is not currently a criminal offence in England and Wales and instead it is up to the owners to use the civil courts to enforce their rights, which can turn in to lengthy and expensive legal battles.

They must also prove to the courts that they are either a ”displaced residential occupier” – someone who has returned from holiday to find squatters in their house – or a ”protected intended occupier”, who is intending to move into an empty property.

In contrast, squatters are also protected by other laws, including the Criminal Law Act 1977, which prevents a home owner forcing their way back in because it makes it an offence to use violence to gain access when there is someone on the premises who is opposed to entry.

They can also take advantage of the controversial law on “adverse possession”, which can allow someone who has occupied a building for 10 years to claim ownership of it.

As anyone should know, particularly if they read Francis’ demolition of an Evening Standard story 5 months ago on this very blog, this is in large part utter nonsense, bilge and hogwash.

If one is a displaced residential occupier, or protected intended occupier, then the squatters are committing a criminal offence under section 7 of the Criminal Law Act 1977 and can be arrested. What is more, such an occupier can use force to enter their home and reasonable force to remove the trespassers.

But in order to remove trespassers, one doesn’t have to prove that one is a displaced residential occupier, or protected intended occupier. One just has to show that you have right to the land and that the trespassers are occupying without permission or authorisation. This is indeed a civil claim and can take some time.

Mr Whitehead appears to be presenting a con-fused botch of the current law, which is both inaccurate and has serious omissions. He either made this complete farrago up himself, or was sold a pup by Ken Clarke’s ‘senior source’ and didn’t bother to do the most elementary fact checking.

But alarm bells should be starting to ring. Let’s have a look at what that ‘senior source’ is quoted as saying:

“Ken has had enough of seeing hard working home owners battle to squatters out.

He is determined to use the full force of the law to save people from the nightmare of having to fight to get their houses back.

The days of ‘squatters’ rights’ will be over.”

Hmm. I’ll come back to this. But can one hope for clarity, or at least accuracy from the other article, which purports to set out the changes?

Mr Hutchinson’s brief exposition of the current law, which he (quite plausibly) attributes to the Home Office is that:

• Squatting is a civil offence against the landlord/owner of the property, which to all intents and purposes means that it is an unlawful practice, but not illegal.
• You can be convicted of a criminal offence if you have caused damage to the property by gaining entry, covered under the Criminal Justice Act 1994.
• Use of electricity etc is also a crime as it is theft.
• The landlord/owners are well within their rights to evict squatters, but they must go to a civil court in order to gain a possession order.
• Squatters do have limited rights. A landlord cannot remove you by violent or forced means, only through the legal process.

So, no. Not accurate. The same muddle of omissions and inaccuracies, in fact. And what of Ken Clarke’s proposals?

The new law will make squatting a criminal offence rather than a civil offence and end the lengthy process of home owners having to fight legal battles in the civil courts in order to evict squatters.

It will allow police to force entry and arrest anyone who has occupied a property. Squatters could even face a prison sentence under the plans if prosecuted.

Home owners don’t have to go through a lengthy process of legal battles in the civil court, as long as they are a displaced residential occupier, or protected intended occupier, so that much is bilge as before.

But what is now clear is that this situation isn’t the target of the proposals. It is not about the squatting of people’s homes – that is already a criminal offence – it is about the squatting of other property, unoccupied or without an intended occupier. The proposal isn’t even about ‘squatting’ per se. The proposal is nothing less than to criminalise trespass.

The Telegraph, and Messers Whitehead and Hutchinson, have either made up this nonsense about people unable to recover possession of their own homes, or, as may be more likely, they have fallen for a bait and switch by the Home Office/MoJ, and been sold a juicy story about protecting homeowners, when the actual proposals are about something else entirely. Messers Whitehead and Hutchinson would appear to have swallowed it wholesale, without any checking whatsoever.

For this example of quality journalism, onto the naughty step they go.

[Edit update 20 March. Things get murkier. The Sunday Telegraph has a piece by Grant Shapps announcing the forthcoming change in the law and the release of booklets on property owners rights against squatters. I seem to recall these being announced quite some time ago, but assuming they contain the correct law (and Shapps does appear to have it more or less right), they would be a useful read for the Telegraph hacks. However, it turns out the the Sunday Telegraph has been running a campaign on tougher squatting laws, again banging on about homeowners, although their example is of a BTL landlord.

Now, criminalising trespass was Tory policy before the election. Mr Pickles, in particular, was very keen on it in relation to gypsy and traveller unauthorised parking up. It appears that the (Sunday) Telegraph going on about homeowners - and by the quotes, being encouraged to do so by the Home Office and MoJ - has given the Govt a convenient PR line on which to sell the proposal; that it is about protecting your home from nasty, freeloading artist types. It appears the Telegraph hacks have been what Lenin would have called 'useful idiots'. ]

This admissibility hearing was the culmination of a long, long story. We reported the Court of Appeal judgment and the House of Lords judgments. The very abbreviated history was that in 2005, the Ofulues had lost a possession claim for a property on the basis that the Bosserts, who had lived in the property since 1981, had gained title through adverse possession.

The Ofulues appealed on the basis that the law on adverse possession constituted a breach of Article 1, Protocol 1,and Art 6, and further that i) the Bosserts had acknowledged that they were tenants in a defence to possession proceedings in 1990, and ii) that the Bosserts had acknowledged title (so as to re-start time) in a without prejudice letter of 1992. The Court of Appeal held that, following Pye v United Kingdom [2007] ECHR 44302/0, adverse possession law was Art 1, Prot 1, and Art 6 compliant. On the acknowledgements of title, the defence to the possession claim did not prevent the ‘defendant’ occupant having the requisite intention to possess – a person believing themselves a tenant may still have to requisite intention to possess. Crucially, the Court of Appeal also held that there was no reason to overturn the usual rule on ‘without prejudice’ correspondence, as the letter was clearly part of an attempt to settle the dispute.

On appeal to the House of Lords, the Olufues argued that the defence to possession claim was an admission of title that persisted until the proceedings were struck out, some 6 years later, and that the ‘without prejudice’ letter should be considered as an acknowledgement of title. The HoL had no problem in disposing of the argument on the possession defence – s.29(2) referred to the date of acknowledgment – signing and service, but no later.

On the ‘without prejudice’ letter, their Lordships split 4 to 1. The majority held, in the words of Lord Neuberger:

that, save perhaps where it is wholly unconnected with the issues between the parties to the proceedings, a statement in without prejudice negotiations should not be admissible in evidence, other than in exceptional circumstances such as those mentioned in Unilever [2000] 1 WLR 2436, 2444D-2445G. It is not only that the offer contained in the relevant sentence of the Letter was connected with the issue between the parties in the earlier proceedings.

Public policy stood in the way of making such an exception. The ECtHR Grand Chamber’s decision in Pye v United Kingdom on Art 1 compliance noted.

Ms Ofulue applied to the ECtHR. She claimed that the House of Lords decision amounted to a breach of her rights under:

• Art 1, protocol 1, in that she had been deprived of her property by the declared inadmissibility of the ‘without prejudice’ correspondence. The without prejudice rule did not serve a legitimate public interest, or at least that the interference with her rights did not strike a fair balance between the general interest and the protection of her individual property rights.
• Art 6, as she was not afforded a reasonable opportunity to present her case under conditions that did not place her at a substantial disadvantage.
• Art 10, in that the House of Lords finding that the ‘without prejudice’ rule applied to the relevant letter (written by the Bosserts’ solicitor, lest we forget) violated her rights to free expression because it failed to strike a fair balance between her rights and the public policy justification for the rule.

The ECtHR decided:

On Art 1, Prot 1, Pye v UK was clear in agreeing that the adverse possession regime was Art 1 compliant and there was nothing different in this case to cause the Court to consider that the Art 1 case might be admissible. The conditions is Pye were no different in consideration of proportionality of the adverse possession regime:

35. The Court recalls that the Grand Chamber in Pye also found that applicants in adverse possession cases were not without procedural protection as it was open to them throughout the limitation period to bring an action for possession or, on the expiry of the limitation period, to argue before the domestic courts that the occupiers of their land had not been in adverse possession. In the present case it was clearly open to the applicant to bring an action for possession at any time and, as indicated above, she did so on two separate occasions. Moreover, there is no indication that the delay in bringing the second set of proceedings was due to any reliance on the letter of 14 January 1992.

36. It was also open to the applicant on the expiry of the limitation period to argue that the Bs had not been in adverse possession. The only restriction on this right was the domestic court’s refusal to admit in evidence the letter of 14 January 1992. However, the Court has already held that this decision did not render the proceedings as a whole unfair in violation of Article 6 § 1 of the Convention. It was for the domestic courts to balance the interests of the applicant against the interests of public policy and they did so in a carefully reasoned decision, taking full account of the arguments put forward by the applicant.

On Art 6:

25. As the purpose of the “without prejudice” rule is to encourage litigants to reduce the burden on the courts by settling their differences rather than litigating them to a finish, it undoubtedly has a legitimate objective. As to the issue of proportionality, the Court must assess the contested limitation placed on the applicant’s rights under Article 6 in the light of the particular circumstances of the case.

26. The Court observes that in the present case the applicant had the benefit of adversarial proceedings. At the various stages of those proceedings she was represented by counsel who was able to submit the arguments he considered relevant to the applicant’s case. There is therefore no indication that the applicant was not given a fair opportunity to present her case at any stage of the proceedings.

27. With regard to the letter of 14 January 1992, the domestic courts fully considered the arguments put forward by the applicant. However, the majority of the House of Lords were of the opinion that carving out an exception to the “without prejudice” rule to permit the admission of the letter of 14 January 1992 would not be consistent with the public policy behind the rule. The majority were particularly concerned that creating such an exception could potentially cause huge practical difficulties while also whittling down the protection afforded to parties to litigation.

28. The Court does not consider that the very essence of the applicant’s right to a fair trial was impaired. While the outcome of the proceedings was unfavourable to the applicant, it is clear that both the first-instance and appellate courts carefully weighed the demands of the applicant against the demands of the general interest before concluding that the letter could not be admitted. In view of all the circumstances of the case, the Court finds that this decision did not render the proceedings as a whole unfair.

On article 10, this argument had quite simply not been put before the domestic courts, so the domestic remedies could not be considered exhausted in this regard.

[This latter is probably the only point where the ECtHR go wrong, in my humble opinion. There is no domestic remedy in respect of an argument not previously raised when the case has been to the House of Lords, although that does not excuse the appellant for not having raised it before. However, I suspect that the ECtHR were looking for a formula to dismiss the Art 10 'freedom of expression' argument without having to actually say that it was completely bonkers. In what conceivable way is the inadmissibility in evidence against one's opponents of a letter by them a restriction on one's freedom of speech? One can say what one wants. The issue is of evidence such as to support factual assertions. No freedom of speech issue there.]

So there we are. It has been a long story, which has principally served to confirm existing domestic and ECtHR law on adverse possession and the ‘without prejudice’ rule. Given Pye v UK, it was always going to be an uphill struggle for Ms Ofulue, and it was, to say the least, unlikely that the ECtHR would interfere with the ‘without prejudice’ rule where the highest domestic court had spent some considerable time on the issue, expressly balancing the competing interests in the case and coming down on the side of public policy.

With the advent of the Land Registration Act 2002 and its new regime for dealing with adverse possession claims these cases are fast disappearing from the Court’s of England & Wales. Luckily, for those who enjoy the common law position in these matters the old ways still apply elsewhere in the United Kingdom and the Court of Appeal in Northern Ireland has just been considering the issues.

In this case the NIHE owned a roughly L-shaped piece of land which G had occupied until about 1966 for the purpose of grazing a variety of animals. G owned a piece of land which (known as “Doherty’s field”) which fitted into the L to make a rectangle. There was little fencing between the two pieces of land and G asserted that since 1966 he had continued to use the disputed land. NIHE had become aware of this in 2004 and had in 2007 instructed solicitors to remove G from the land as they now wished to build houses in the area and needed the land to provide appropriate amenities for those new houses.

The appellant relied on a number of matters which he claimed established that he was in possession of the lands adversely to the paper owner. He relied primarily on the use of the land for grazing for the horses and contended that he kept a relatively large number of horses over the years which freely grazed the lands. These horses, he claimed, were kept by way of horse dealing and horse training. On occasion a veterinary surgeon, Mr Doherty, would attend the lands to deal with veterinary problems affecting the horses. Over the years the appellant repaired rough fencing around the disputed land which kept his horses in. He also claimed that on occasions he fertilised the land, put lime on it and on one occasion applied a weed killer. On one occasion he grew potatoes on part of the land but this was an unsuccessful venture as local residents removed the potatoes. He also relied on the fact that he permitted the Army to replace part of the fence and remove part of a hedge which was providing cover to snipers. He also relied on the fact that he had in place an area of hard core standing to enable him to feed the horses. He claimed that that area was located partly on Doherty’s field and partly on the disputed land and that this helped to demonstrate his animus possidendi of the disputed land.

At first instance the Court had doubts as to the credibility of G and would not accept his evidence without corroboration. On this basis it was held that he was a long way from showing the necessary level of adverse possession. The first instance Court drew significant adverse inferences from the poor condition of the land, the fact that local people would regularly wander onto the land and use it for hunting, and the placement of an area of hard standing.

The principal component of G’s case was that because he had previously occupied the land by permission his possession thereafter and therefore a distinction should be drawn (per Williams v. Jones [2002] EWCA Civ 1097) between a trespasser claiming adverse possession, who will need to show animus possidendi, and a former tenant claiming adverse possession, who will not. On this basis the first instance judge had applied an incorrect, and overly restrictive, test.

The Court of Appeal did not accept this, pointing out that the first instance Judge had found that G had not held a tenancy, but a grazing licence. Tenancies for agricultural purposes are very uncommon in Northern Ireland whereas licences for grazing are very common and the first instance Judge was therefore right to make this determination. Given that the grazing was the main issue relied on by G this fatally weakened his case. Grazing is often offered on a non-exclusive basis and without far more is insufficient to show adverse possession. The only issue which would then assist G was the placement of the hard standing. The first instance Judge had concluded that this was not on the disputed land and the Court of Appeal would not change that view.

Accordingly, the appeal was dismissed and new houses will presumably be built in the Londonderry area.

To recap: the claimant lives in a caravan on land to the North of road which is a part of the public highway, even though it is not itself metaled. He claims that, by adverse possession, he is entitled to have his title to the land registered.

My view was that this was bound to fail because: (i) a highway cannot be extinguished by adverse possession (the “once a highway, always a highway” point); and (ii) section 263 of the Highways Act 1980 vests the surface of any highway maintainable at public expense (as this one was) in the local authority. The same analysis was applied by Elias LJ and Mummery LJ in the Court of Appeal. Orthodoxy, in my view anyway, is restored.

I had also doubted whether a statement by Mummery LJ in the earlier case of London Borough of Bromley v. Morritt [1999] EWCA Civ 1631 that property could not be acquired by adverse possession over land subject to a public right of way could be correct. Mummery LJ helpfully clear this up:

In the court below, counsel for the Land Registry cited a passage from London Borough of Bromley v. Morritt [1999] EWCA Civ 1631 in which, without any display of law, I said-

“As a matter of law, an adverse possession or squatter’s title cannot be acquired to land over which a public right of way exists.”

In that case the court had not had the benefit of clear legal submissions on the point — in particular the appellant was a litigant in person —. I think that “without any display of law” is a very neat and gracious way of the judge to put it.

My last post on this subject generated a lot of feedback – ranging from those who equated adverse possession with theft, to those who felt the court ought to have made the doctrine more expansive. I should make it clear that I am not unsympathetic to Mr Smith’s plight. Successive governments have passed laws making it increasingly difficult for people, especially Romani Gypsies, to exist in England and Wales lawfully, without providing them with any alternatives. That, on any analysis, seems irrational (since the alternative may be to house them using public funds which as readers know is not in generous supply) and unfair.

What seems to be the problem here is s.263 of the Highways Act 1980. Earlier acts, up to section 29 of the Local Government Act 1929, vested not the whole highway but the “road” in the local authority. While “road” did include the footway beside the road, it did not include roadside wastes such as Mr Smith inhabits (Curtis v Kesteven County Council (1890) 45 Ch D 504) and it might be useful — for legal certainty if nothing else — if that were still the situation. For some reason the drafters of the 1980 Act decided to extend the vesting to the whole of the highway beyond merely the road.

The court did not consider the “illegality” argument which had been put forward by the Council at first instance, namely that because Mr Smith’s occupation of his property was illegal, he could not thereby gain adverse possession of it.

You may remember that we reported on Mr Ashmore’s attempts to resists the Port of London Authority’s attempts to register their ownership of the bed of the River Thames on the ground that he had acquired title to it (well a part of it) by adverse possession where the judge at first instance found that he had established factual possession and an intention to possess.

Unfortunately that decision was taken by the judge the hearing of a preliminary issue. The order for a trial of a preliminary issue was made by consent. The issue being:

Whether it is possible for the owner of a vessel that is moored in a particular place on a tidal river or other area of tidal water to acquire title by adverse possession to the sea or river bed or the foreshore for the footprint of that vessel where:

(a) the title to the sea or river bed or the foreshore has not been registered; and

(b) the vessel rests on the bed or the foreshore at low tide.

An agreed statement of assumed facts for the preliminary issue only was agreed and submitted to the judge.

Here things start to get odd. At the trial of the preliminary issue the Port of London conceded that title to the bed of a tidal river can (in principle at least) be acquired by adverse possession. That would seem, almost, to be a concession that the preliminary issue should be found in Mr Ashmore’s favour (indeed it would cease to be an issue). While it might be possible to find some very narrow difference between the preliminary issue as stated and the authority’s concession, they do not appear to have taken that position. As far as I can tell (and I am happy to be corrected) the authority agreed with the proposition to be tried, so the preliminary hearing would seem to be pointless.

Not to be deterred by this, the parties argued whether Mr Ashmore had in fact (based on the agreed assumed facts) established both factual possession and an intention to possess. The points taken are dealt with in my earlier post. Having found for Mr Ashmore on this issue, the judge was bound to answer the preliminary question in the affirmative. If, on the assumed facts, Mr Ashmore had established adverse possession, then it was clearly possible for someone to do that in principle because the judge found that someone had. The judge’s order included the following statement:

1. It is possible for the owner of a vessel that is moored in a particular place on a tidal river to acquire title by adverse possession to the river bed or the foreshore for the footprint of that vessel where:

(a) the title to the river bed or the foreshore has not been registered; and

(b) the vessel rests on the bed or the foreshore at low tide.

This isn’t quite the same wording as that used in the original order since it omits the phrase “or other area of tidal water”. But, strictly speaking, the judge’s narrower statement implies the more general one: if A is possible then surely one of A or B is possible.

The Port of London Authority decided to appeal this decision. Why they should do so given that they appear to accept the point in issue I do not know. They were given permission. At the hearing, counsel for the Port of London Authority explained that the authority conceded that there could be circumstances in which the owner of a vessel moored on a tidal river might acquire title by adverse possession to a part of the river bed or foreshore. What he wanted the Court of Appeal to do was to indicate in its judgment what circumstances those might be.

He suggested the following:

(1) An owner of a vessel that is moored on or over the bed of tidal waters will only be capable of being in adverse possession of the bed by reason only of that mooring if he can prove that it would not have been possible for the vessel to float off at Mean High Water if released from its moorings.

(2) An owner of a vessel that is moored on or over the bed of non-tidal waters will only be capable of being in adverse possession of the bed by reason only of that mooring if he can prove that it would not have been possible for the vessel to float off if released from its moorings where the waters were at their average depth during the preceding calendar year.

(3) The principles set out above do not prevent the owner of the vessel from showing by other acts that he was in possession of the land upon or over which the vessel was moored or which included such land.

Unsurprisingly the court refused to make a judgment in those terms. First because it did not think it appropriate to set down an arbitrary test for the acquiring of adverse possession to the river bed and second because principles (1) and (2) could not be applied to the case before it since the agreed statement of assumed facts did not give sufficient information to decide whether they did or did not apply.

For myself I would have refused the appeal on the basis that the order made by the judge on a preliminary issue had been conceded by the appellant. End of story.

Perhaps because of the peculiar nature of the case before it, the court decided it needed to do some peculiar reasoning as well.  The court discerned in the trial judge’s decision a qualification to the declaration he made, namely that it was not intended by the judge to be made in general terms, but was confined to the agreed statement of assumed facts. The court appears to have thought it should not have been made in the general terms it was.

With the greatest respect to the Court of Appeal, who must have struggled with the peculiar way the case was presented before them, that must be a nonsense. If on specific facts a judge finds that X is the case, then it must be true as a completely general proposition that it is possible for X to be the case. The judge’s decision cannot be faulted for its generality which follows inevitably for his finding on the facts before him and the question he was asked to resolve.

The court decided that there was no useful purpose in deciding whether the judge’s decision on the facts before him was right. The court also felt that it could not, in allowing the appeal, qualify the order that the judge made by confining it to the agreed statement of assumed facts. There was nothing for it but to set aside that part (paragraph 1) of the judge’s order. Unfortunately there is no report of the rest of the order, so it is impossible for us to see what state the case is left in. Very nearly back to square one by the sounds of it.

Can anyone throw any light on how this muddle came about, or why the Court of Appeal felt compelled to make the very odd decision that they did?

It is with the latter that we begin
tolata mother and daughter inheritance tax and succession with a will
Just how much can you stuff into one short question? And without giving us any idea what is actually going on?

rehousing on asthma grounds lambeth
I’m resisting the temptation to make the obvious joke about Asthma Grounds being a surprisingly pleasant low rise estate. If your current housing is having an impact on your asthma, you may get a medicial priority, but as far as I recall from Lambeth’s allocation scheme, it is not likely to be a high priority. You should see a local independent housing advisor, as a lot depends on the specific details.

not paid rent from and onwards
Are you boasting imprecisely or complaining without detail?

tenant gas inspection statutory nuisance
If you mean can a gas inspection be a statutory nuisance, no. If you want a gas inspection and the landlord isn’t carrying one out, this is a serious breach of tenancy conditions and potentially the landlord’s repairing obligations if there is a problem – in which case run, don’t walk, to your nearest housing solicitor, local authority tenancy relations team or housing advisor. If, and I am scratching my head over the statutory nuisance here, the issue is another tenant refusing access for a gas inspection in their property which is affecting yours, then their landlord is the first point of contact and possibly the local authority environmental health and/or the gas co.

charging orders declaration of trust deed
Eh? Trying to avoid a charging order or assign the benefit of one?

music 3 am asb warning
Not bloody surprised. And possibly from the same person, we have…

noise abatement order defence student
Being a student is not going to help. There is no ‘young, irresponsible and drunk much of the time’ defence in the statute.

delegated authority to issue possession proceedings
No – not by an agent or another behalf on of the landlord unless the person is the landlord’s legal representative (meaning a solicitor authorised to sign the claim on the landlord’s behalf). If a power of attorney is involved – maybe and perhaps, but if so only with leave of the court.

will i get evicted for unlawful subletting of shared ownership?
Quite possibly. Depends on the precise terms of the lease, but it is likely to be either a lease or an assured tenancy and under either a sublet is likely prohibited. You appear to know that this is the case as you call it unlawful, If it is, then it is a significant breach of lease/tenancy and the landlord could probably seek possession.

unlawfully evicted illegal subletting
I think the answer is in the question. Unless, of course, you were thrown out without a possession order having been obtained against the tenant who unlawfully let to you…

i am a tennant in a house where the bank have a posession order can i make them an offer on the property uk
You can, of course. There is absolutely no guarantee that they will take any notice of you whatsoever.

quick access to adverse possesion in luton
It is no quicker in Luton than anywhere else. 10 years now. You’ll just have to wait.

plural of criterea
What are they teaching the children in school these days? Any fule no it is criterion.

dyslexics could not understand legal contracts
Words fail me.

southwark housing act regarding repair before tenancy commence
There is a legal requirement that a property be fit for human habitation when it is let as a furnished property, but this is a pretty low threshold in any event. Otherwise, repairs are not enforceable (assuming that they are repairs for which the landlord is liable under the tenancy agreement and s.11 Landlord and Tenant Act 1985) until the tenancy has begun. However, it is worth checking Southwark’s tenancy agreement, allocation policy and other documents for any statements of the minimum standard of housing to be provided. These may be useful. Off the top of my head and without them in front of me, I couldn’t say.

the courts have given me a suspended sentance for rent arrears what does this mean
That you got a really, really tough District Judge? I presume you mean suspended possession order – if so, it means make the payments set out in the suspended order or your landlord can ask the court for a warrant to evict you. Until May 2009, it would have meant a lot of other things as well, none of them good, but at least now you remain a tenant.

when did was secure tenancy introduced
1980, it did was.

i have been living as a tolerated trespasser for 6 years can i be evicted
The good news is that you aren’t a tolerated trespasser any more and haven’t been since May 2009 – you have a ‘replacement tenancy’ of some kind. The bad news is that the original possession order is still there, so if you haven’t paid off the rent arrears – if that is what it was – you still could be evicted, but your landlord would probably need to apply to the court for permission to apply for a warrant, as the possession order is over 6 years old.

first essex high court
There may be High Courts outside London now, but this is just a little ahead of its time. The Billericay High Court is not sitting yet…

can sister claim possession of my property
I have absolutely no idea. I am not acquainted with your sister or your property or the relationship between them.

how many weeks make a year
There are limits to our public service remit. Out of curiosity, I googled this. NL is at the bottom of page one – for a post called ‘How many weeks make 8′. Above NL are about 10 links that all say ’52, idiot. I can’t believe you are asking this’. So this person clicked on the link to NL…

The Authority raised two objections to Mr Ashmore’s claim.

First, it was argued that Mr Ashmore did not have and had not had exclusive possession of the river bed because he had “no continuous, unbroken possession of the bed.” His barge was of course rising and falling. Not only did it sit on the river bed only at low tide, it also failed to occupy any defined area of space (for what one might call a “floating freehold”).

The judge disagreed. He relied on a useful encapsulation of the law by Slade J in Powell v. McFarlane (1977) 38 P & CR 452, in particular the ruling that what constitutes a sufficient degree of possession depends on “the nature of the land and the manner in which land of that nature is commonly used or enjoyed”.

The famous case of Red House Farms (Thorndon) Ltd v. Catchpole [1977] 2 EGLR 125 makes the point. The land in question was marshland. Adverse possession was successfully claimed on the basis of using the land for shooting. Clearly in that case there was no need for continuous occupation of any kind.

The House of Lords approved Powell in J A Pye (Oxford) Ltd v. Graham[2003] 1 AC 419 in which Lord Hutton approached the question by asking “what an occupying owner of the disputed land might have done over and above what was done”. The judge found that a useful test and thought that, short of building a structure on the river bed, Mr Ashmore could have done nothing more. Given that a squatter does not have to build on land to demonstrate adverse possession he felt that Mr Ashmore had done enough.

The Authority’s second objection was that Mr Ashmore had not demonstrated sufficient intention to possess the river bed, no animus possidendi as we used to say. The Authority’s argument was that what Mr Ashmore was doing could equally well have been compatible with the exercise of some other right that was less than possession, for example:

• an exercise of the public right of navigation
• an exercise of riparian rights by a riparian owner
• a licence, which might or might not be coupled with a lease of the moorings themselves
• an easement for the benefit of the land on the shore or bank

(for those who aren’t familiar with this slightly arcane area of law, you can translate “riparian” by “river bank”).

Well that much is true if the test were what a casual passer-by might think, but the judge found that the test was what the

occupier would say to someone with the knowledge of the paper owner “if he took the trouble to be aware of what was happening to his land”

On which basis the judge found that Mr Ashmore had the requisite intention to possess.

What is interesting to me is that counsel for the Authority conceded that the existence of a public right of navigation did not prevent Mr Ashmore’s asquiring the river bed by adverse possession. As the judge commented, Mr Ashmore’s victory might be pyrrhic because it would neither give him a right to obstruct the public right of navigation nor any right of access to the river bank.

That is, in my view, exactly right and contrasts with the wholly mistaken view taken by the court in R (Smith) v Land Registry (Peterborough) [2009] EWHC 328 (Admin).

The Claimant had occupied land with his caravan and its associated structures for in excess of 12 years. He applied to the Land Registry to register his title to the land by adverse possession. The land itself formed a part of a public highway open to all traffic. Accordingly the assistant land registrar refused the application for two reasons: (1) “title cannot be acquired to highway by adverse possession” and (2) the Claimant had not shown a sufficient degree of exclusive physical control over the land in question to found a claim for adverse possession.

The Claimant applied for judicial review.

At first glance the case seems quite straightforward. The Claimant accepted conclusion (2) which would (surely?) mean his claim would be bound to fail. Nevertheless the court thought it was useful (given that the Claimant intended to make another application to the registrar) to decide whether conclusion (1) was right.

Even at second glance the case seems relatively straightforward. As any student of land law knows, adverse possession only affects corporeal not incorporeal hereditaments (other than tithes and rentcharges, although a typical student might be forgiven for ignoring them). For example, if a squatter takes over my neighbour’s property, their adverse possession won’t affect any easements my property has over theirs such as a rights of light or way. See s.38(1) of the Limitation Act 1980.

What is more, no amount of obstruction to a highway, for however long will destroy the highway (Harvey v Truro Rural District Council [1903] 2 Ch 638).  As the saying goes “once a highway always a highway”.

This is relevant because, unfortunately for Mr Smith, s.236 of the Highways Act 1980 provides that every highway maintainable at public expense (as was the one in question) vests in the highway authority “together with the materials and scrapings of it“.

In other words so long as the highway remained a highway the local highway authority (Cambridgeshire County Council) owned and continued to own the top surface of the highway and so Mr Smith’s attempt to acquire ownership of the same was doomed.

Unfortunately that relatively simple approach does not appear to have been enough for the court. Instead the court proceeded to decide that: (1) it is impossible to obtain title to a highway by adverse possession and possibly (2) possession which amounts to a criminal offence cannot found a claim for adverse possession.

The assistant land registrar had based his conclusion on a statement by Lord Justice Mummery in London Borough of Bromley v Morritt. There are two cases of that name, which were heard as conjoined appeals. Only the first was reported (as London Borough of Bromley v Morritt (No. 1) [2000] E.H.L.R. 24), it is the second (case number CCRTF 1998/0956/2) which relates to adverse possession of a highway.

The judge said:

As a matter of law, an adverse possession or squatter’s title cannot be acquired to land over which a public right of way exists.

One wonders why not. For example it is quite possible for the land subject to the highway to be held by a private individual who may then exercise rights (such as grazing of livestock) over the highway provided that exercise of those rights does not interfere with the right of the public to pass over the highway.

Possession, for the purposes of adverse possession, need only be possession that is consistent with the nature of the land in question. Provided I exercise the rights of the land owner, minimal though they might be, I should be able to establish possession of land subject to a public right of way.

Morritt is an unfortunate case because the Claimant was a litigant in person. There does not appear to have been any proper argument or consideration of the adverse possession claim, so that Mummery LJ’s conclusion must be treated with caution. Furthermore it is, at least technically, made by the way and not properly authoritative.

Recognising that Morritt was not binding authority, the trial judge relied on the case of Harvey that I referred to above. He said:

Joyce J concluded that this was an encroachment and said in relation to it:

“The possession of a squatter on the highway since 1886 cannot bar the public right.”

In other words, Joyce J held that adverse possession could not be asserted if (as is alleged here) the effect would be to exclude the public from part of a highway, and that was so even if the part concerned had not been used, as such, for a number of years.

Nonsense. In Harvey the Claimant had applied for a declaration that the land in question (part of the roadside waste) was not a part of the highway. Adverse possession was never claimed. In fact it was quite possible that the land formed a part of the Claimant’s estate. Joyce J did not think that had been proved to his satisfaction, but he did not determine the question because the parties wished him to consider the right of the public over the roadside waste.

Not content with misconstruing Harvey the judge went on to consider what he called the “illegality” point. The Defendant and the Council had argued that there was a principle of public policy which prevents a party acquiring a legal right by illegal activity. Mr Smith’s taking possession of a part of the highway with his caravan etc would amount to an obstruction of part of the highway contrart to s.137 of the Highways Act 1980. Public policy would intervene to prevent him from claiming adverse possession on that ground.

By an extremely convoluted route, the judge found support for the existence of such a proposition in the House of Lords decision in Bakewell Management Limited v Brandwood [2004] 2 AC 519. That case was about rights acquired by prescription not by adverse possession. They are quite different legal principles. As Edward Burn my old land lecturer used to say: prescription is based on use as of right, but adverse possession is use as of wrong.

The decision in Bakewell concerned whether the Defendants could acquire a prescriptive right of way over a common for their vehicles. They had been driving over the common to their properties for at least 20 years but that action was criminal in nature because it was done without the consent of the owner of the commons. The Lords found that, even so, they could acquire a prescriptive right under the doctrine of lost modern grant which presumed that use as of right for 20 years implied the existence of a grant from the land owner (now unfortunately lost). If they owners of the common had granted a right to the Defendants their use would not have been criminal.

At first sight Bakewell looks rather unpromising as a case to found a general principle of public policy that a party cannot acquire a legal right by illegal activity because that is exactly what the Defendants were found to have done. Nevertheless the trial judge appeared to be able to so find on the basis that Bakewell was an exception to a general principle. In Mr Smith’s case the local authority could not have granted him a right to obstruct the highway and so he fell outside the Bakewell exception and could not succeed. Of course that is not how the decision in Bakewell operated and in any event referred to prescription not adverse possession which is based on wrong not right.

Worse was to come. The judge relied on Glamorgan County Council v Carter [1963] 1 WLR 1 (which has absolutely no relevance whatsoever but that should be no surprise to readers by now) on the basis that it was approved by Lord Scott in Bakewell. He said (my apologies for the length):

In his opinion in B akewell , Lord Scott approved Glamorgan County Council v Carter [1963] 1 WLR 1 in these terms:

“ Glamorgan County Council v Carter [1963] 1 WLR 1 was the next case cited by Dillon LJ. The question at issue arose out of the provisions of the Town and Country Planning Act 1947 . The question was whether planning permission was required for the use of certain land as a site for caravans. Section 12 (5) ( of the Act said that planning permission was not needed in order to authorise the use of unoccupied land for the purposes for which it had been last used. The last use that had been made of the land was as a site for caravans but at the time this use was taking place it had been an illegal use. This was a context in which Salmon LJ, at page five, made the statement cited by Dillon LJ, namely: “It seems to me plain on principle that Mrs James could not acquire any legal right by the illegal use to which she was putting the land.” Salmon LJ made this statement in a planning context. Mrs James could not establish legal rights of use for the purposes of 1947 Act by relying on use that was unlawful under the 1947 Act. The proposition was plainly correct. ”

In my judgment it is the principle stated in the Glamorgan County Council case and approved by Lord Scott in Bakewell (rather than the exception to it by which Bakewell was actually resolved) that applies in a case of this sort.

It is regrettable that the judge ended his citation of Lord Scott at that point for he continues:

But the case had nothing to do with prescriptive use. It was, in my opinion, an unconvincing use of authority to take Salmon LJ’s statement out of context and treat the principle he expressed as applicable to prescriptive use.

In my view the judge’s use of the authority was equally unconvincing.

I do not think I need to go on. In my view the judge was either badly mislead by counsel or did not properly understand the authorities that were put before him. That is very unfortunate as he appears to have stated a general principle which does not, on closer examination, stand up.

Readers have fellow blogger “J” to thank for this lengthy diatribe. I am about to blog about an elegant case involving the acquisition of tidal foreshore in the Thames by adverse possession but, before I was permitted to do so, I was told I had to report this case.

There is only one possession related issue. The Court of Appeal had held that an admission of title in a defence to a possession claim was an admission of freehold, not of immediate right to possession and therefore not an acknowledgment of title for the purposes of the Limitation Act 1980 (of which more below). Lord Neuberger, without dissent from the others, found that was wrong. Firstly, the 1980 Act refers to title, not possession; and secondly, the acknowledgment was of right to possession, albeit subject to the tenant’s rights in law or in equity [para 75].

That disposed of, the evidence and limitation issues were as follows:

On appeal to the Lords, the appellants, the Ofulues, argued that:
i) a without prejudice letter from the respondent written during possession proceedings in January 1992 set the start of the twelve year period for adverse possession such that the appellant’s possession claim was commenced prior to the expiry of twelve years adverse possession.
ii) an acknowledgment of title in a defence to possession claim subsisted until the claim was struck out, some 6 years later.

This is important because of s.29(2) of the Limitation Act 1980:

(2) If the person in possession of the land . . . in question acknowledges the title of the person to whom the right of action has accrued -
(a) the right shall be treated as having accrued on and not before the date of the acknowledgement …

The answer to argument by their Lordships to point ii) was in essence short and sweet. S.29(2)(a) refers to the date of acknowledgment. That is the date of signing and perhaps service of such an acknowledgement, but no later. There is nothing in s.29 to suggest or allow a continuing acknowledgment as long as proceedings last.

This left the without prejudice letter of January 1992, which contained an offer to purchase the property.

On this, their Lordships were split, 4 to 1. The majority held that public policy on the use of without prejudice negotiations meant that the letter should not be available as evidence of an acknowledgment of title in the later (second) set of possession proceedings.

The dissenter, Lord Scott, did so on the basis that without prejudice protection extended only to discussions or admissions as to the ‘facts to be determined in the case’ [para 23] or an admission made purely in an attempt to achieve a settlement [para 25]. In this case, the appellants’ title had been admitted in the defence, so the further admission in the letter of January 1992 was neither a fact to be determined in the case, nor an admission made purely to achieve settlement – it was already an openly admitted fact. So the ‘rule’ in Rush & Tompkins Ltd v Greater London Council [1989] AC 1280 that the without prejudice rule covers any subsequent litigation based on the same facts does not apply.

The majority, with Lord Neuberger’s judgment as lead, upheld the public policy view that without prejudice discussions should not be opened in proceedings. Lord Hope, Lord Rodger and Lord Walker argued that the difficulty of separating agreed fact from offer of settlement was such that the prospect would inhibit open negotiations between parties.

Lord Neuberger holds that:
i) the admitted fact was art of the same sentence as an offer to settle in this instance and inseparable from it, so the without prejudice rule applied.
ii) An admission of title where whether the title was unencumbered or not was at issue could not be said to be remote from the issues to be decided.
iii) The distinction drawn by the appellants between an admission as a matter of fact and taking it as evidence of the truth of the admission (i.e between the offer being admissible as evidence that the respondents admitted the appellants title, not as evidence that the appellants were the owners) is, in practice, too subtle to apply. The distinction between and acknowledgement and an admission is too unclear to draw, at least with public policy in view.
iv) The public policy embodied in s.29 of the 1980 Act did not override the public policy interests of the without prejudice rule. There is no special exception.

Although their Lordships consider that there may yet be further exceptions to the rule developed beyond those in Unilever plc v The Procter & Gamble Co [2000] 1 WLR 2436, this was not such a case.