Moving on: criminal squatting and adverse possession

A recent High Court ruling on the inter-relationship between section 144 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 and adverse possession has clarified that the illegality of the trespass does not constitute a bar to a squatter's claim to a possessory title (Best v Chief Land Registrar [2014] EWHC 1370 (Admin)).

First, a look back to last year and the question
of whether the new offence of squatting in residential buildings, introduced by section 144, precluded an otherwise successful claim to adverse possession (as discussed in 'Moving in, moving out', SJ 157/10).

Although the offence is not retrospective and does not criminalise any squatting taking place before 1 September 2012 (when the section came into force), the effect of section 144(7) is that later squatting is not prevented from being criminal as a result of having started before this date.

This is of particular importance to claims of adverse possession of registered land, as schedule 6, paragraph 1(1) of the 2012 Act requires the claimant to have been "in adverse possession of the estate for the period of ten years ending on the date of the application". In contrast, where land is unregistered, it would be possible to
rely on 12 years of adverse possession before
1 September 2012 as the basis for a claim.

Unlike acquiring an easement by prescription, which is founded on an assumption of right or entitlement to the user, adverse possession does not occur through user as of right but on "possession as of wrong" (Buckinghamshire
County Council v Moran [1990] Ch 623). There is
no reason, therefore, why a trespasser cannot acquire title through adverse possession, which is not only a tortious wrong but a criminal offence.

The fact that they are occupying contrary to
the criminal law does not detract from the fact that they are in 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).

In Bakewell Management Ltd v Brandwood [2004] UKHL 14, where the House of Lords
applied the fiction of a presumed grant to a
user which, though both criminal and tortious, was nevertheless a user which the owner (if so minded) could have authorised at any time.

Can the Bakewell principle be extended to
cases of residential squatting where the legal owner's (notional) consent to the trespass
would provide a complete defence to any
criminal charge under section 144 of the 2012 Act?

Smith case

At first glance, R (on the application of Wayne Smith) v Land Registry (Peterborough Office) [2009] EWHC 328 (Admin) suggests that the squatter's criminal activity makes it impossible for the squatter to acquire title by adverse possession. In Smith, 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.

As 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. The test, however, was whether the trespasser had used the land in a way that the legal owner might have been expected.

The claimant could not show this as the local authority could not itself use the land in this
way, nor could it have licensed anyone to do
so because any such user would have been
an illegal obstruction of the highway.

To this extent, therefore, the decision 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 also, however, some suggestion in Smith 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.

This is not necessarily conclusive of the question whether a claim to an adverse title can be founded on an illegal possession, though. An act of possession that contravenes the criminal law may still evidence an intention to possess
to the exclusion of the paper owner.

Latest ruling

In Best, the claimant applied (in November 2012) to register his title to a three-bedroomed house in Ilford, east London, on the grounds that he had been in adverse possession for ten years since 2001. The Chief Land Registrar rejected the application because, in his view, time could
not run for registration in view of the criminality of the trespass (the claimant had been living in the property since January 2012) under section 144(1) of the 2012 Act.

On application for judicial review to the High Court, Ouseley J found in favour of the claimant. According to his lordship, the Bakewell decision supported the notion that the public policy interest in not allowing a person to take advantage of his own wrong may have to
give way, depending on factual context, to
other (countervailing) public policy interests.

In his lordship's words: "In Bakewell, that public interest lay in providing a lawful basis for acts long continued without objection, even if without consent. That, however, is precisely the same countervailing interest which justifies adverse possession, even if it involved the commission
of an offence, enabling the trespasser and criminal to rely on his own wrongdoing.

"A similar public interest applies: title should not be left uncertain in the face of long possession to which there had been no adverse reaction even if no consent."

In short, the public policy advantages of adverse possession, namely preventing the economic disadvantages of land remaining unused and unclaimed, outweighed the fact that the adverse possession was based on a criminal trespass.

To this extent, the Smith decision was unhelpful as it did not address the issue of countervailing policy interests.

Moreover, if the crucial factor, expressed in Bakewell, was the capability of the owner to give consent, that same factor would apply not only to prescription cases but also claims involving adverse possession.

In Bakewell, the fictional grant of consent removed the effect of the illegality, so similarly, in the present case, it was within the power
of the legal owner (Mrs Curtis)
to permit
the adverse occupation (although she had, in fact,
never done so).

The application of a general principle that rights could not be acquired through the commission
of offences would have prevented any rights
being acquired by prescription in Bakewell.

Quite apart from policy interests, however, it was apparent that section 144 was not intended by parliament to impact on the law of adverse possession in relation to both registered and unregistered land. A squatter with past criminal offences would still remain liable to prosecution under the 2012 Act.

No obvious purpose would be served
by preventing applications for registration notwithstanding that they were based on
criminal trespass. On the other hand, arbitrary consequences would result if section 144
was held to apply to the registration system,
given that:

• the offence of criminal trespass only applies
  to the 'building' and not its curtilage;

• it is only the 'living in' the building that is criminalised; and

• no distinction is made between
  recent squatting and more prolonged
  acts of criminal trespass.

These restrictions could potentially have random (and unintended) effects on adverse possession claims. In his lordship's view, therefore, the primary function of section 144 was to assist homeowners to evict squatters swiftly and more forcefully via the help of the criminal law and "not to throw a spanner into the delicate workings of the [Land Registration Act 2002], with random effects on
the operation of adverse possession, all without
a backward glance".

Human rights

There's also the related question of whether
a squatter, who is in midterm of acquiring a possessory title to a residential building, can rely on a human rights argument to successfully resist any refusal to register their title (see 'Enforcing Squatters' Human Rights, SJ, 157/20).

If a squatter meets a refusal to register,
there is certainly, at least, the potential
for a successful human rights argument that
section 144 breaches their fundamental rights
to respect for their family home and peaceful enjoyment of his possessions under article 8(1) and protocol 1 to article 1 of the European Convention on Human Rights, respectively.

In Best, Ouseley J expressed briefly his views
on the human rights arguments, although these were purely obiter given his decision in favour
of the claimant on the main issue.

First, article 8 was not engaged by a refusal to register title by adverse possession. This was the view taken by Arden LJ in the earlier case of R (on the application of Wayne Smith) v Land Registry (Peterborough Office) [2010] EWCA Civ 200, (CA).

Second, the claimant never had possession in the sense protected by ECHR: "He had to have possession sufficiently established to amount
to a legitimate expectation of obtaining
effective enjoyment of a property right."

The difficulty here was that the system
of registration of title, under the Land
Registration Act 2002, precluded any such legitimate expectation arising simply through
the passage of time - the claimant had no immediate right to title even after expiry of the relevant period of adverse possession.

Third, any interference with article 8 rights was reasonable and proportionate. Even if engaged, therefore, there was no incompatibility between section 144 and article 8.

Appeal stage

In view of the case's importance, the Chief Land Registrar has been given leave to appeal to the Court of Appeal. It remains to be seen whether the court will endorse the views of Ouseley J in accepting that section 144 has no effect on adverse possession claims.

It will also be interesting to see what view (if any) is taken on the human rights arguments, which were only briefly addressed in the High Court. SJ

Mark Pawlowski is a barrister and professor of property law and Sandra Clarke is a barrister and teaching fellow at the School of Law, University of Greenwich

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