A Land Registry lawyer explores the implications of the Court of Appeal judgment in the Best adverse possession case.

Court of Appeal document

Should a person acting apparently in breach of the criminal law be able to rely on those apparently criminal acts when applying to register title on the basis of adverse possession?

By enacting s.144 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPOA 2012), which outlawed being in a residential building as a squatter while living or intending to live there, having entered as a trespasser, did Parliament intend to restrict the circumstances in which adverse possession could be acquired?

How should Land Registry deal with applications for registration of title acquired by adverse possession where s.144 LASPOA 2012 appeared to affect the period of adverse possession being relied upon by the applicant to establish a claim? Can a person commit a criminal act and still acquire rights and an asset under the law relating to adverse possession?

These were the issues tackled by the High Court and then the Court of Appeal in R (Best) v The Chief Land Registrar [2015] EWCA Civ 17.

The judgment of the Court of Appeal has provided clarity in the matter. The judgment may prove to be of increasing significance in future, given the possibility that the Government, in its published response to the consultation relating to s.144 LASPOA 2012, indicated that it would keep the law under review, and that extension of the provision to cover commercial premises may be considered.

The facts

Mr Keith Best spotted an empty property in Ilford, Essex, in the late 1990s. In his evidence he said he had entered the property to repair and improve it so that by 2001 he had secured the property and was treating it as his own.

In January 2012 he moved in and started to live in it. On 1 September 2012 s.144 LASPOA 2012 came into force, and on 27 November 2012 Mr Best submitted his application to Land Registry under Land Registration Act 2002 Schedule 6 paragraph 1 (the property being a registered title) for registration of title acquired by adverse possession.

Such applications require an applicant to have been in adverse possession for a 10-year period ending on the date of the application. For the period between September and November 2012, which Mr Best was relying on to establish his claim, he appeared also to be potentially committing an offence under s.144 LASPOA 2012.

Following an exchange of correspondence with Land Registry, the application was ultimately cancelled. We relied on a High Court decision, R (Smith) v Land Registry [2009] EWHC 328 (Admin), which held that adverse possession of a highway could not be acquired where criminal obstruction was taking place contrary to the Highways Act 1980.

Naturally we were mindful of the consequences of allowing an application to proceed in such circumstances. Applications for adverse possession of abandoned properties often produce no response to the statutory notices served.

Completion of such an application, if the Smith case applied to s.144 LASPOA 2012, could have created a mistake in the register which could be the subject of an application for alteration and indemnity perhaps years later, for instance by the estate of a deceased registered proprietor.

The decision by the Court of Appeal

The Court of Appeal looked at the matter from a number of different angles. It found that Parliament, when enacting s.144 LASPOA 2012, could not have intended it to affect the law relating to adverse possession.

S.144 had been introduced to deal with the problem of short-term squatters and the difficulties home owners have in terms of securing an eviction when their home has been taken away from them. Adverse possession was not the “mischief” s.144 had been created to address therefore. Had Parliament intended to interfere with the law of adverse possession, express mention would have been made in the Act.

If s.144 did prevent adverse possession from arising, there would have been some undesirable consequences, for instance adverse possession could no longer be relied on to show title in cases where deeds had been lost in unregistered land cases.

The court also considered that it could not be right if s.144 had this effect where the squatter was living in the building, even though a squatter could acquire title to the house anyway by squatting in it in a way which specifically avoided a breach of s.144.

The court was heavily influenced by the strong public policy reasons for the existence of an adverse possession regime, in particular the certainty it provides and the fact that it prevents land from becoming sterile and unusable where no owner can be found.

These were strong public policy reasons in favour of adverse possession applying, which outweighed the public policy considerations which may otherwise dictate that a claimant should not be able to rely on criminal acts when seeking to recover an asset or establish a claim.

The court was however careful to point out that this was not an absolute rule. There could be cases in which illegal behaviour by the squatter would bar any subsequent claim in adverse possession, giving the rather extreme example of a squatter who murders the true owner to prevent recovery of possession, or if a squatter was to bribe a police officer not to take enforcement action in order to acquire adverse possession.

For cases in which s.144 LASPOA 2012 appears to apply, however, it is now clear that the law relating to adverse possession is unaffected.

Gavin Curry
By Gavin Curry,
Digital Communications and Editorial Officer at HM Land Registry