Illegal occupation is no bar to adverse possession

Best, R (On the Application Of) v The Secretary of State for Justice (Rev 1) [2015] EWCA Civ 17

The Court of Appeal considered the clash of s.144 LASPO and the rules on adverse possession, on appeal from the Administrative Court. Our report on the Admin Court judgment is here, and, to be honest, I’m not sure that the Court of Appeal adds much to that judgment. Much the same arguments were rehearsed and much the same conclusion is reached.

On the one hand, the public policy behind adverse possession. On the other, the principle that the courts should not support someone benefiting from a criminal act. And policy, in the form of statutory provisions for adverse possession, wins out, in the absence of anything express in s.144 LASPO to the contrary.

Per Sales LJ

  1. In my view, the best guidance on the relevant analytical framework for present purposes is given in the speech of Lord Wilson JSC (speaking for the majority) in Hounga v Allen [2014] UKSC 47[2014] 1 WLR 2889. In that case, an employee who had been brought from Nigeria by her employer so as to enter the United Kingdom in breach of immigration control, to take up employment here illegally, was then dismissed by the employer. The employee sought to bring a claim for unlawful race discrimination in relation to her dismissal. Her claim succeeded in the employment tribunal, but the Court of Appeal set its order aside, holding that the illegality of the contract of employment formed a material part of the claimant’s complaint and that to uphold it would be to condone the illegality. The Supreme Court allowed the employee’s appeal.
  2. In doing so, the Supreme Court confirmed the position arrived at in Tinsley v Milligan [1994] 1 AC 340: the law of illegality does not operate to confer a broad discretion on a court to take any illegal actions on the part of a claimant into account when deciding the extent to which such illegality has an impact upon the relief sought by the claimant. Rather, the task for the court is to identify in the specific context in question a particular rule which reflects in an appropriate way the relevant underlying policy in that area:

And while:

  1. […] It could be said that to leave open any scope for the illegality defence to operate in this area would undermine to an inappropriate degree the public policy benefits associated with the adverse possession regimes for both registered and unregistered land, and the legal certainty that those regimes are intended to promote in relation to dealings with land. I observe that the public policy benefits of completely excluding the operation of the illegality principle are especially strong in relation to unregistered land, for which there is no definitive register of title to give assurance to those entering transactions relating to land and no supervising regulator to police title and the operation of any illegality argument. Moreover, since the same concept of adverse possession is employed in Schedule 6 to the LRA (see para. 11 of Schedule 6), it can be argued that these points of distinction should make no difference so far as the operation of the illegality principle in relation to registered land is concerned, so that it might be said that even in respect of registered land it is the position in relation to unregistered land which provides the correct context for application of the public policy balancing test.

This case needed only be decided on a narrower approach to adverse possession and the illegality principle, in relation to the specific illegality of Mr Best’s occupation:

  1. […] Although the public policy concerns underlying acquisition of title by adverse possession are very strong, especially in relation to unregistered land, I have some doubt whether Parliament can be taken to have intended the illegality principle to be wholly excluded from having any potential impact whatever in relation to the operation of paragraph 1 of Schedule 6 to the LRA. The difficulty with Mr Rainey’s wider submission is that it covers such an extensive and protean category of conduct that it might be said to be difficult to say, in advance, of every conceivable form of criminally unlawful action bearing upon acquisition of title to registered land by adverse possession that Parliament intended it should have no impact at all upon the operation of the LRA. For example, I would wish to reserve my opinion regarding a case in which a trespasser in occupation of a residential building bribed a police officer not to expel him in reliance on section 144 of LASPOA, thus procuring or participating in an offence of corruption in a public office to gain the benefit of being registered as the proprietor with the title to the land; or a case in which a trespasser murdered the true owner in order to prevent him from claiming possession of the property.

And thus:

  1. […]the relevant balance of public policy considerations shows clearly that the fact that a relevant period of adverse possession for the purposes of the LRA included times during which the possessor’s actions constituted a criminal offence under section 144 of LASPOA does not prevent his conduct throughout from qualifying as relevant adverse possession for the purposes of the LRA.

There is an extended discussion on Parliamentary intention in enacting LASPO, and the materials around it indicating that while the interaction with adverse possession has been raised, it had not resulted in a specific provision. The policy purpose of adverse possession is also addressed at length.

Meanwhile, in a short Judgment, Arden LJ finds the same result, but based simply, she states, on the basis of statutory interpretation:

  1. […]the true interpretation of schedule 6 of the LRA and section 144 of LASPOA, it is the intention of Parliament that an application for registration of adverse possession should not be barred by reliance on acts in contravention of section 144 of LASPOA. The subject matter is sufficient to exclude ex turpi causa in this instance. The provisions of schedule 6 of the LRA must be interpreted to give effect to that intention. Section 144 and schedule 6 operate independently of each other. Parliament’s decision to enact section 144 in separate legislation reinforces this conclusion. The Registrar was right to raise the questions that he has done. But in my judgment, the ex turpi causa principle is excluded from schedule 6 of the LRA to the extent of any criminal conduct under section 144 of LASPOA.

The Admin’s Court’s decision upheld. Whether on policy considerations, or because LASPO failed to make specific statutory address to the interrelation of s.144 and adverse possession may be less clear…

About Giles Peaker

Giles Peaker is a solicitor and partner in the Housing and Public Law team at Anthony Gold Solicitors in South London. You can find him on Linkedin and on Twitter. Known as NL round these parts, and still is Nearly Legal on Google +.
Posted in Adverse possession, Housing law - All and tagged , .

6 Comments

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