Moving in, moving out: will judges allow adverse possession claims based on an offence?

The new offence of squatting in residential buildings, which came into force on 1 September 2012, under section 144 of the Legal Aid, Sentencing and Punishment of Offenders Act, is committed regardless of whether the squatter entered the property before or after the commencement of the section. The Act, however, makes no reference to how this may affect the existing law given that a person may have begun to occupy adversely a residential property before 1 September 2012, but the requisite 12 year period had ?not expired by that date. Does the criminality ?of the trespass now preclude a claim to ?adverse possession?

Cases on acquiring an easement by prescription are founded on an assumption of right or entitlement to the user. Hence, there must be a lawful exercise of the relevant user (i.e., easement or profit) in order to acquire the right (see Cargill v Gotts [1981] 1 WLR 441 and George Legge and Son Ltd v Wenlock Corporation [1938] 1 All ER 37).

Adverse possession, on the other hand, does not occur through user as of right but upon “possession as of wrong” (Buckinghamshire County Council v Moran [1990] Ch. 623). Is there any reason why a trespasser cannot acquire title through adverse possession which is not only a tortious wrong but also a criminal offence? Why must his possession be legal possession? The case law on adverse possession simply requires that possession must be “open, not secret; peaceful, not by force; and adverse, not by consent of the true owner” (Mulcahy v Curramore Property Ltd [1974] 2 NSWLR 464, at 475 and Browne v Perry [1991] 1 WLR 1297).

There is nothing in the Limitation Act 1980 which debars a claimant from acquiring title by means of an illegal occupation, as opposed to a fraud, concealment or mistake (section 32 of the 1980 Act). However, in R (on the application of Wayne Smith) v Land Registry (Peterborough Office) [2009] EWHC 328 (Admin), the claimant had claimed title by adverse possession on the basis that his caravan had been situated on a public highway for over 12 years. Since, however, the caravan constituted an unlawful obstruction of the highway, under section 137 of the Highways Act 1980, the criminal illegality of the occupation was held to be fatal to the claim.

Legally impossible

While the criminal act of trespass can be authorised at any time to prevent the crime from continuing, the trespass remains a criminal act until the owner’s consent ?is granted. Does, however, his criminal activity necessarily make it, in the words of HH Judge Pelling in Smith, “legally impossible” for the squatter to acquire title by adverse possession?

In Smith, the test was whether the trespasser had used the land in a way which the legal owner might have been expected to deal with it. This the claimant could not show, as the local authority could not use the land in this way. Arguably, therefore, Smith is unique to its facts and does not necessarily conclude the matter so far as any criminal trespass of private residential land is concerned.

There is some suggestion in the judgment that the rejection of the claim was based on the wider principle which prevents reliance on an illegal act as a means of acquiring an easement by prescription (Hulley v Silversprings Bleaching and Dyeing Co Ltd [1922] Ch. 268). In Smith, HH Judge Pelling placed particular reliance on Glamorgan County Council v Carter [1963] 1 WLR 1, a planning case involving the use of land as a site for caravans in contravention of the Town and Country Planning Act 1947, where Salmon LJ stated: “It seems to me plain on principle that [the claimant] could not acquire any legal right by the illegal use to which she was putting the land.”

In Lambeth London Borough Council v Blackburn [2001] EWCA Civ 912, the trespasser obtained access to a flat by illegal means, but the actual act of squatting was not itself illegal. The Court of Appeal decision makes no reference to this illegality as barring a claim to adverse possession. In Smith, however, this decision was distinguished in so far as the subsequent possession of the land did not constitute a criminal act.

Competent grantor

Even if illegality constitutes a prima facie bar to a claim based on adverse possession, it may be possible to apply the reasoning of Bakewell Management Ltd v Brandwood [2004] UKHL 14, a case on acquiring a user of land by prescription, to a trespasser who is committing an offence under section 144 of the 2012 Act.

In Bakewell, the House of Lords was prepared to extend the fiction of a presumed grant to a user which though both criminal and tortious was, nevertheless, a user which the owner could have authorised at any time. The claimant was the owner of common land that was bordered by houses belonging to the defendants. For many years, the defendants had been driving over the common land to reach their homes.

The claimant argued that the defendants could not establish easements of way by prescription because driving on common land without the permission of the landowner is a criminal offence under section 193 (4) of the Law of Property Act 1925. The House of Lords held that the easements could be established by prescription if the user could have been ?the subject of an express grant at any time ?which (in turn) would have constituted “lawful authority” under section 193 (4) of the 1925 Act.

Lord Scott made the point that it is the tortious act of trespass (the illegal conduct in the civil sense) which forms the basis for acquiring a prescriptive right. He then asked why conduct which is illegal in a criminal sense should be treated any differently if it is only criminal because the owner has given no consent to it. In both cases, the “illegality” is entirely dependent on the owner’s permission. In his view, therefore, prescription applies regardless of whether the use relied on is illegal in a criminal sense or merely unlawful in the tortious sense. Lord Walker made the same point. In his view, the important requirement is that there should be a “competent grantor, rather than any wider principle based on criminality”.

Absence of permission

In adverse possession cases, title is acquired by the tortious act of trespass. As in Bakewell, the paper owner does not give consent to the user of the land and his prior permission would provide a complete defence to any criminal charge under section 144 of the 2012 Act. In the words of Lord Walker: “it is the landowner’s unfettered power of dispensing from criminal liability, exercisable at his own discretion… which is the key”.

If that is right, why should the absence of the owner’s permission in an adverse possession claim produce a different result where section ?144 applies? In Smith no valid licence to ?occupy the public highway could have been ?granted by the highway authority and so ?the exception recognised in Bakewell could ?not apply.

There is, however, an obvious difficulty in applying the Bakewell exception to cases of adverse possession. If we assume that the paper owner had given permission to the user of the land, the claimant’s possession would not have been adverse at all and, therefore, no title could have been acquired in the first place. Prescription (at least at common law, though possibly not under the Prescription Act 1832) is based on presumed consent due to long acquiescence; it is not destructive of the landowner’s title as it is relying on his title to legitimise the use – in effect, the owner is deemed to have granted the easement. Adverse possession, on the other hand, is destructive of title. It must be adverse (in the sense that it is without the landowner’s permission) or it does not destroy his title (see Grantham Christian Fellowship v Scouts [2005] EWHC 209 Ch, where adverse possession could not be claimed because a long-standing informal licence had never been revoked, and Pye v Graham [2002] UKHL 30, where adverse possession could not start until the relevant licence had expired).

The point here is that the paper owner is in no sense a grantor in adverse possession cases. Under the Land Registration Act 2002, the squatter applies to be registered “as the proprietor of a registered estate in land if he has been in adverse possession of the estate for the period of ten years ending on the date of the application” (schedule 6, para 1, 2012 Act). He, therefore, becomes the proprietor of the same estate originally held by the former paper owner, but that transfer takes place by operation of law, not by the paper owner.

In neither case is there the consent of the paper owner. If, therefore, consent negatives any possibility of adverse possession, it is difficult to see how the court could be persuaded to apply the fiction of consent (successfully applied in Bakewell) so as to avoid the inevitable consequence of criminality under section 144 of the 2012 Act.

In our view, the Smith decision is not conclusive of the question whether a claim to an adverse title can be founded on an illegal possession. An act of possession which contravenes the criminal law may still evidence an intention to possess to the exclusion of the paper owner. Unlike Smith, there will be cases where the owner has the power to licence (or consent to) the unlawful occupation. In such cases, the Bakewell exception has the potential for side-stepping the illegality argument successfully applied in Smith.

The interesting question is whether there is a sufficient public policy interest in extending the exception to cases of residential squatting given that the 2012 Act has created a new offence specifically intended to combat ongoing acts of trespass retrospectively. Apparently, the Land Registry has already indicated that it will accept applications based exclusively on adverse possession made before 1 September 2012. This leaves open 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.