The Question of "Criminal" Adverse Possession: Best v The Chief Land Registrar and another [2014] EWHC 1370 (Admin)

The High Court has recently held that the fact that adverse possession was based upon criminal trespass did not preclude a successful claim to adverse possession under the Land Registration Act 2002 (LRA 2002).

In Best v The Chief Land Registrar the Court has considered the effect on a claim for adverse possession of section 144 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO 2012), which criminalises trespass by "living" in a residential building. The Court found that the Chief Registrar had been wrong to refuse a squatter's application for adverse possession on the basis that his occupation of the property had constituted a criminal offence under section 144 LASPO 2012.

The property in question had been empty and vandalised since 1997, and the registered proprietor was understood to have died. The claimant squatter entered the property and carried out works to it: in 2000 he repaired the roof and continued making other works with the intention of turning the property into his home. In January 2012 he moved into the property, and on 27 November 2012 he applied to be registered as proprietor of the property on the basis that he had been in adverse possession for a period of ten years ending on the date of his application (as required by paragraph 1 of Schedule 6 to LRA 2002).

The squatter was told that his application would be unsuccessful as the registrar considered that the effect of section 144 LASPO 2012 was to prevent a claimant relying on any period of adverse possession which involved a criminal offence. Section 144 came into force on 1 September 2012 and provides that an offence is committed by any person who is in a residential building as a trespasser having entered it as a trespasser, knows or ought to have known that he or she is a trespasser, and is living in the building or intends to live there in any period. The registrar claimed that the period of adverse possession from the enactment of this section could not constitute adverse possession, and so the squatter's claim failed.

It is not clear from the wording of LASPO 2012 what the effect of the offence is on a squatter's ability to establish adverse possession. However, whilst it is a general rule that a person cannot acquire a right to do something that is prohibited by public statute, upon judicial review the High Court quashed the decision of the registrar and declared that the squatter's application was to proceed.

The High Court found that it was doubtful that Parliament would have enacted section 144 unless it had assumed that adverse possession would not be affected by whether trespassory acts of possession were criminal or merely unlawful torts. The purposes of section 144 is to help property owners who need immediate police action, not to disrupt the adverse possession regime.

Property owners may find it helpful (albeit disappointing) to have a clear authority that the fact that a squatter's occupation constitutes a criminal offence will not preclude the squatter from acquiring title by adverse possession. After all, if criminal acts could not form the basis of a claim to adverse possession, this would require the registrar to decide, on the civil burden of proof, what are or are not crimes as a prerequisite to accepting an application. It nevertheless still raises the question: to what extent should a wrong-doer be able to benefit from his wrongdoing?