By Frances Traynor
11th December 2017
Thu 26 Oct 2017 by Lorraine Imhoff
The High Court has recently had to consider a case which quite frankly needed never to have been brought. The fault was not really that of either of the parties to the case, but that of the politicians who rushed through a piece of legislation without considering all the consequences of it.
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The case was brought by a Mr. Best against the Chief Land Registrar. Mr Best claimed possessory title to a house which he did not own but said he had occupied since 2001. In November 2012 he applied to the Land Registry to be registered as the owner of the property in place of the original registered owner.
However the Land Registry cancelled his application – not because they thought he could not show that he had been in adverse possession of the property for the period required by law, but because they considered that since September 2012 he had been committing a criminal offence by living in the house.
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The question before the Court was whether the criminalising of trespass by living in a residential building, pursuant to section 144(1) of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPOA), stops anyone applying for registration of title by adverse possession - so-called squatter's title - to a house or other residential property.
Fortunately for Mr Best the judge decided that S144 did not preclude his application. It will now therefore be for the Land Registry to decide whether Mr Best has shown that he has been in 'adverse possession' for a period of at least 10 years and is therefore entitled to be registered.
Entering on someone else's property without their consent constitutes the civil tort of trespass. However trespass has not generally been a criminal offence before 2012.
So when trespassers or squatters entered someone else's home and started living there the home-owner would have to bring a civil action against the squatters to try and get them evicted. This was often a long and expensive process.
Following a number of highly-publicised cases where squatters had entered homes while their owners were on holiday the government decided to do something. It therefore inserted a section into a lengthy Bill which was then under consideration by Parliament.
Under Section 144 of LASPOA a criminal offence is committed if a person is living in a residential building having knowingly entered it as a trespasser.
But what about so-called “squatters rights”? S144 did not say anything about the situation of anyone who has already been a long-term occupier of a house they don't own or rent. You are committing a criminal offence if you are living in a house as a trespasser whether you entered before or after S144 came into effect.
The law has long effectively allowed squatters to claim legal title to land if they occupied it for at least twelve years without the true owner's consent, and without the true owner taking any action to recover possession. This is known as claiming possessory title by adverse possession.
This situation arises because for several hundred years a series of Limitation Acts (currently the 1980 Act) have barred a landowner from bringing a legal action to recover possession of land if the action is not begun within a specified period of time after the cause of the action occurred. That time period is generally twelve years, although longer time periods may apply in certain cases.
What that meant in practice was that if you occupied land (which of course includes any buildings on the land) without the true owner's consent and without acknowledging his or her legal title, then after twelve years you effectively owned the land because the true owner was statute-barred from claiming possession.
You could then sell the land to someone else and they could continue to claim possessory title, as the original owner would never be able to reclaim the land.
When the present system of title registration was introduced provision was made for possessory titles to be registered. That did not create any problems if the true owner's title was not already registered, as the Limitation Act 1980 extinguished the original owner's title.
But if title to the land was already registered when someone else claimed title by adverse possession the original title was not automatically extinguished. Instead the Land Registry would open a second possessory title.
But it was long considered that it was unreasonable for a squatter to claim possessory title of registered land since it would have been easy for him to find out who the true owner was.
There was also an argument that recognising possessory title amounted to legalised theft of land and was contrary to human rights law.
In an attempt to rectify the situation, and following a number of major cases, the opportunity was taken to change the law when other major changes to the land registration system were being considered.
The Land Registration Act 2002 (LRA) disapplied the Limitation Act 1980 to registered land – so the twelve-year rule no longer applies to registered land. This means that a registered proprietor could bring a possession action against a squatter at any time.
But a squatter can now apply for registration as proprietor of a registered estate "if he has been in adverse possession of the estate for the period of ten years ending on the date of the application".
When such an application is received, the Land Registry has to give notice of it to the registered proprietor (and any registered mortgage lender.)
A person given notice may require that the application be dealt with under further provisions of the LRA. If there is no such response to the notice "the applicant is entitled to be entered in the register as the new proprietor of the estate."
The Land Registry can also reject the application even if the registered owner does not respond to a notice. For instance the Registry might consider that there was insufficient evidence of 'adverse possession' of the land in question.
In the case which the High Court had to consider Mr Best was claiming title to a house and garden in Newbury Park, Ilford, East London. He said that he is a builder and became aware that the property was empty in 1997, when he was doing some work at a nearby property.
He was informed that the original owner of the house, a Mrs Curtis, had died some years previously. Although she had a son, he had not been seen for some time and no-one knew who was entitled to the property.
To all intents and purposes the house had been abandoned. It was in disrepair and been badly vandalised. The garden was overgrown.
Mr Best entered the property and did various work to it. In 2000 he repaired the roof, had the garden cleared and took other steps to make it wind and watertight.
As time went on, he replaced ceilings and skirting boards, and electric and heating fitments. He also plastered and painted walls, intending to make it his permanent residence.
He moved in at the end of January 2012, but claimed that he had treated the house as his own since 2001. There had been no disputes about his possession of the property. But he had occupied it without anyone's consent, which meant he was a trespasser.
The Chief Land Registrar claimed that because his trespass was now a criminal act under S144 of LASPOA Mr Best's application was substantially defective. He could not satisfy the relevant provisions of the LRA 2002, which impliedly required that the applicant's possession should not have constituted a criminal offence for any part of the ten year period of adverse possession he relied on.
Mr Best applied for judicial review of the Registrar's decision.
It was of course the case that if Mr Best had established adverse possession of the house in 2001 then he would have been entitled to apply for registration in 2011, i.e. before trespass in a house became a criminal offence.
Mr Justice Ouseley, the judge who had to decide the case, reviewed all the facts and the law relating to possessory title. He also reviewed the history of S144 of LASPOA, pointing out that the Land Registry had raised the issue of the effect of the proposed change in its response to consultation on LASPOA.
The Registry said one of its effects would be to prevent squatters acquiring ownership through their possession. They had commented "This might be thought a good thing in most cases, but we wonder whether it would always be desirable".
It seems that the latter part of the registry's comments was ignored by Parliament. The judge noted that “LASPOA contained no transitional provisions for those who might be entitled to make an application for registration of title under the 2002 Act, nor for the running of the limitation period for unregistered land. It contained no saving provision for those who had been in possession for years without any attempt to dispossess them, let alone by any court or police action.”
In reviewing the relevant law the judge referred to the Law Commission report which had preceded the LRA 2002. The commission had recognised that acquisition of title by adverse possession is in some cases, is in some cases “tantamount to sanctioning a theft of land". But “there had to be a sensible relationship between the law of title and the law of possession, to avoid land becoming unmarketable, for example where the true owner had disappeared.”
After a lengthy consideration of the law, in which he referred to a number of cases involving claims for adverse possession or other rights over land, the judge decided that the Chief Land Registrar's decision was founded on an error of law. Therefore the fact that Mr Best's occupation of the house had been a criminal for a few months did not preclude the Land Registry from considering his application.
He commented “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.”
So Mr Best's application will now have to be re-considered by the Land Registry. He will still need to convince the Registry that he has been in adverse possession for the requisite period.
There could also be an appeal against the judgement, so it is too early to say whether this case will be the final word on this issue.
Perhaps parliament could also be persuaded to sort out the mess which it created in the first place.
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