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Obtaining title by criminal adverse possession

An application to the Land Registry to be registered as proprietor of land through adverse possession requires possession for the 10 years immediately preceding the application (Schedule 6, Land Registration Act 2002).

Mr Best had been in adverse possession of residential property for more than 10 years. However, before he applied to register his title, the Legal Aid, Sentencing and Punishment of Offenders Act 2012 came into force. Section 144 criminalises trespass when it consists of living in a residential building. Mr Best’s occupation of the building, therefore, became criminal.

His application to the Land Registry under Schedule 6 was cancelled, on the grounds that adverse possession that involved a criminal offence could not be relied on as a basis of an application. Mr Best challenged that decision in judicial review proceedings.

Best v Chief Land Registrar [2014] EWHC 1370 (Admin) is an interesting discussion of the importance, and the limits, of the principle that “no man can found a cause of action on his own criminal conduct”. The principle must be balanced against competing public policy interests, the advancement of which is imputed to Parliament’s intention whenever it legislates; and the public policy interests behind the law of adverse possession are clear and significant.

Ouseley J concluded that:

“… the purpose of s.144 was to help those who needed rather more immediate and committed police action on the side of the property owner than an action for civil trespass alone afforded, to deal with perhaps numbers of squatters, who refused to depart, and exploited the civil law’s delays to fortify the house against the owner, to use his possessions as their own, at a cost to him which was unlikely to be recovered.  It was not to throw a spanner into the delicate workings of the 2002 Act, with random effects on the operation of adverse possession, all without a backward glance.

Parliament should be taken to have thought that the public policy advantages of adverse possession at common law meant that the mere fact that the adverse possession was based on criminal trespass did not and should not preclude a successful claim to adverse possession.”

Accordingly, the Chief Registrar’s decision was founded on an error of law, and would be quashed.

David Willink / 1st Jul 2014


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