Enforcing squatters' human rights

The Legal Aid, Sentencing and Punishment of Offenders Act 2012 received Royal Assent on 1 May 2012. Section 144 of the Act creates a new offence of squatting in residential buildings, which came into force on 1 September 2012. The offence is not retrospective and does not criminalise any squatting taking place before 1 September 2012. The effect, however, of section 144(7) is that later squatting is not prevented from being criminal as a result of having started before this date.

In an earlier article ('Moving in, moving out', Solicitors Journal, 12 March 2013), we discussed the question of whether the criminality of the trespass now precluded a claim to adverse possession. But can a squatter who is in mid-term of acquiring a possessory title to a residential building rely on a human rights argument to successfully resist any refusal to register his title?

Respect for private and family life

Article 8(1) of the European Convention on Human Rights states that "everyone has the right to respect for his private and family life, his home and his correspondence." Could this be applied to protect the unlawful occupation of a residential building which began prior to 1 September 2012? One difficulty here is that any article 8 rights claimed by the squatter would be inevitably tempered by the argument that section 144 was enacted because it was "necessary in a democratic society" or in order to promote some legitimate purpose, including the preservation of the rights of property owners (under article 1) who may (for whatever reason) have left their property abandoned.

The courts may, however, be persuaded to interpret the new section as being incompatible with article 8 (1) rights so as to prevent its application in cases where a squatter and his family have occupied a residential property adversely prior to 1 September 2012. In Birmingham County Council v Lloyd [2012] EWCA Civ 969, the local authority sought possession of a property occupied by the deceased tenant's brother as a trespasser. The Court of Appeal held that a trespasser who had no right to remain in a property under domestic law could only invoke article 8 to defend possession proceedings in "very highly exceptional circumstances": see, Manchester City Council v Pinnock [2010] UKSC 45 and Hounslow London Borough Council v Powell [2011] UKSC 8 (per Lord Phillips, at [92]). A significant feature, however, in the Lloyd case was that the defendant was not merely a trespasser in the property but that he had never had any right (either by contract or statute) to occupy the premises. Moreover, he was not in adverse possession because, by his actions in applying for a tenancy, he had acknowledged the local authority's title. The criminal squatter, on the other hand, who has already gone some way towards acquiring title prior to 1 September 2012, may fall to be treated differently given that his occupation was not per se criminal prior to the enactment of section 114. That said, it is apparent that a trespasser seeking to raise an article 8 defence will face "a very uphill task indeed" of establishing "the most extraordinarily exceptional circumstances" such as to warrant the court's intervention (See, Lloyd, at [18], per Lord Neuberger).

In Lloyd itself, the defendant had a history of depression and his financial circumstances would have made it difficult for him to find other accommodation. The fact of his depression was not, however, supported by evidence and his financial difficulties were largely irrelevant given that the point of article 8 was respect for a person's current home and not a duty to provide a home. Lord Neuberger also noted that business concerns (the defendant had secured a start-up business loan which would be wasted if he was evicted) were only a marginal concern in the context of an article 8 defence. Given the very "high threshold" which a trespasser needs to cross in order to invoke a proportionality defence, the likelihood of an illegal squatter who has only partially acquired possession adversely prior to the coming into force of section 144, succeeding in an article 8(1) defence must, at best, be considered problematic.

Peaceful enjoyment

In addition to article 8, protocol 1 to article 1 of the convention states that "every natural or legal person is entitled to the peaceful enjoyment of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law."

If the new criminal offence were to be used to upset retrospectively the recognised law on adverse possession, a claim might be made that the squatter's existing property rights (i.e. those acquired prior to the new offence coming into force) had been abrogated. This would be particularly clear if the squatter had already completed 12 years adverse possession of a residential property before 1 September 2012, as he would have already extinguished the paper owner's title. Arguably, he is, therefore, no longer committing an offence, as he is no longer a trespasser, the paper owner having lost title before the commencement of the criminal offence. Any attempt to use the retrospective effect of section 144 (7) to "resurrect" the paper owner's title would arguably be a breach of the protocol.

What, however, of the squatter who is part-way to extinguishing the title of the paper owner on 1 September 2012? If the courts take the view that occupation after that date is now a criminal offence, relying on section 144 (7), could this constitute a breach of the protocol?
The protocol is limited by "the right of a state to enforce such laws as it deems necessary to control the use of property in accordance with the general interest…" Would this include the interests of land owners who have left residential property unattended for long periods and who would otherwise lose their land to the squatter?

The protocol was the subject of an application to the European Court of Human Rights, and subsequently to the Grand Chamber in Pye v United Kingdom (Application No. 44302/02, 30 August 2007).

The court held that the laws of adverse possession, in their unreformed state before the commencement of 2002 Act, were not in breach of the protocol. The decision of the majority was based on the fact that the limitation periods have a legitimate purpose in the law, and that this limitation period is relatively long. Simple actions by the registered proprietor would have enabled them to end the limitation period. There was, therefore, no requirement on the British government to reform the laws in favour of property owners of any type.

However, Pye itself did not concern a residential building, so can provide no guidance on whether the current law under section 144 could be in breach of human rights, or whether it represents a legitimate balance between the rights of landowners and the rights of squatters who have made a home in their unattended property.

The Land Registry has already indicated that it will not proceed with an application for registration based on adverse possession, unless it is satisfied that the factual possession relied on in support of the application did not constitute a criminal offence under section 144. Because, however, the section is not retrospective (i.e., it does not criminalise squatting taking place before 1 September 2012), the offence is only relevant if an application for registration, under paragraph 1 of schedule 6 to the Land Registration Act 2002, is made on or after 1 September 2012.

In other words, applications based exclusively on adverse possession made before 1 September 2012 will be accepted. (The Practice Guide 4, 'Adverse Possession of Registered Land' and Practice Guide 5, 'Adverse Possession of (1) Unregistered Land and (2) Registered Land where a Right to be Registered was Acquired Before 13 October 2003', are in the process of being updated to refer to the new offence under section 144.)

This leaves open, however, the question of whether a squatter who is in mid-term of acquiring title will be able to apply for registration despite the criminal nature of his occupation after 1 September 2012. If he is met with a refusal to register, there is certainly, at least, the potential for a successful human rights argument that the new legislation breaches his fundamental rights to respect for his family home and peaceful enjoyment of his possessions.

Interestingly, one squatter, Irene Gardiner, has already attempted to institute a human rights claim against the police and the CPS seeking assurances that she will not be prosecuted or removed from her home (a Welsh cottage which has remained vacant for 30 years) where she has squatted with her children for the past 11 years.

However, no proceedings were actually issued on her behalf. It will be interesting to see, therefore, whether any other article 8 claims are brought in the foreseeable future and, if so, whether they are dismissed peremptorily as having no prospect of success or whether they will be given a full airing on the basis that there is an arguable case that section 144 has no application when family life claims are involved.