Your questions answered: Can time spent 'criminally' squatting go towards time needed to establish adverse possession?

Your questions answered: Can time spent 'criminally' squatting go towards time needed to establish adverse possession?

Published:

Author: Bukola Aremu & Lucy Jones

Applies to: England and Wales

Yes: the court has held that although a person squatting in a residential building is committing a criminal offence this does not prevent him relying on his criminal act when applying to register title on the basis of adverse possession.

Since 1 September 2012, under Section 144 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPOA), it is a criminal offence to be in a residential building as a squatter while living or intending to live there having entered as a trespasser. The court in the case of R (on the application of Best) v Chief Land Registrar considered this in relation to the law of adverse possession.

The facts

Having first noticed an 'empty and vandalised' property in 1997, Mr Best entered the property and commenced extensive works to it. He repaired the roof in 2000 and went on to make the house weatherproof, replace ceilings, skirting boards, electric and heating fitments, doors and windows. He also plastered and painted walls and maintained the boundary fences, all with a view to making the house his permanent residence. He eventually moved into the house in January 2012, upon which, due to s.144 LASPOA, he began committing a criminal offence. On 27 November 2012 Mr Best made an application to the Land Registry to be registered as the proprietor of the property on the basis that he had been in possession of it for over 10 years as is required under paragraph 1 of Schedule 6 to the Land Registration Act 2002 (LRA).

The Land Registry decided that the application should be rejected by reason of the contravention of s.144 LASPOA, stating 'It is not possible to rely on an act which is itself a criminal offence.as evidence of adverse possession'. Without the period of 'criminal' occupation, Mr Best did not have the sufficient length of occupation required for adverse possession.

Mr Best applied to the High Court for Judicial Review. The question for the court was whether an application for a person to be registered under the LRA as the proprietor of a registered estate in land by reason of a period of adverse possession was valid, where part of the relevant period of possession consisted of the occupation of a residential building in circumstances constituting the commission of a criminal offence under s.144 of LASPO.

The decision

The court at first instance held that the application should not have been rejected, on the basis that the offence under s.144 LASPOA had no material effect on the operation of the law of adverse possession. When handing down his judgment Mr Justice Ouseley said:

'The purpose of s.144 was not to affect the acquisition of title by adverse possession, which takes years of possession, but to enable the landowner, excluded or dispossessed by trespassers probably in short term occupation after a period of absence by the landowner, to call upon the support of the police and the coercive effect of criminal law to recover possession, rather than having to wait for the slower and less immediately effective workings of civil justice through possession actions.'

The Chief Land Registrar appealed to the Court of Appeal who, in January 2015, upheld the first instance decision. The Court agreed that the enactment of s.144 LASPOA and the commission of an offence under it had no material effect on the operation of the law of adverse possession. It pointed out that it would be bizarre if someone could obtain adverse possession of a property by, for example, erecting a tent in the garden or building a fence around the entire property, but someone who actually lived in the property could not because the latter would constitute a criminal offence. There were also strong public policy reasons for recognising title where adverse possession has continued for a period without objection from the registered property owner, in particular the certainty it provides and the fact that it prevents land from becoming sterile and unusable where no owner can be found.

Residential property owners should therefore be aware that, despite the protection of LASPOA, squatters will still be able to obtain adverse possession of residential buildings.

Disclaimer

This document is for informational purposes only and does not constitute legal advice. It is recommended that specific professional advice is sought before acting on any of the information given.

About the author

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Olubukola Obadun-Craigs

Senior Associate

03700 864394

Bukola has over 10 years experience in dealing with all aspects of housing management litigation issues for registered providers and local authorities. Her experience includes possession claims for breach of tenancy, disrepair matters, and anti-social behaviour, possession claims and injunction applications. Bukola is a member of the Chartered Institute of Housing.

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