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Best v The Chief Land Registrar & Anor
Factual and Procedural Background
This claim for judicial review concerns whether section 144(1) of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPOA), which criminalises trespass by "living in" a residential building, prevents the running of time for applications for registration of title by adverse possession (squatter's title) to registered land. The Chief Land Registrar decided that it does prevent such time running. The Claimant challenges this, arguing that s144 LASPOA was never intended to have that effect on registration of title.
The property at 35 Church Road, Newbury Park, is registered freehold land with another individual as registered proprietor. The Claimant applied on 27 November 2012 to register title based on ten years of adverse possession ending on the date of application. He declared that he had entered and occupied the property without consent, undertaking repairs and treating it as his own since 2001, and had been living there since January 2012. The Claimant acknowledged being a trespasser and that from 1 September 2012, when s144 LASPOA came into force, his living in the building constituted a criminal offence.
The Chief Land Registrar notified the Claimant on 10 December 2012 of an intention to cancel the application, concluding that s144 LASPOA prevented reliance on any period of adverse possession involving a criminal offence. The decision was influenced by the High Court decision in a case concerning adverse possession of a highway by obstruction contrary to the Highways Act 1980. After considering further submissions, the application was cancelled by a final decision dated 11 February 2013. The Claimant brought this judicial review challenge to that decision.
Legal Issues Presented
- Whether section 144 LASPOA affects the operation of adverse possession provisions under the Land Registration Act 2002 (LRA 2002) by preventing time running for applications for registration of title based on criminal trespass.
- Whether acts of adverse possession other than "living in" a building (such as securing the property or carrying out repairs) are affected by s144 LASPOA.
- Whether s144 LASPOA is compatible with Article 8 and Article 1 of Protocol 1 of the European Convention on Human Rights (ECHR), or whether it requires reading down to avoid incompatibility.
Arguments of the Parties
Claimant's Arguments
- S144 LASPOA was not intended to affect the operation of the LRA 2002 adverse possession provisions; the criminalisation of "living in" should not prevent registration of title by adverse possession.
- The offence only criminalises "living in" a residential building and does not affect other physical acts of adverse possession (e.g., securing doors, repairs), which should suffice for registration.
- S144 should be read down to avoid breaching Article 8 and Article 1 Protocol 1 ECHR, for example by excluding buildings already occupied as a home or abandoned buildings from its scope.
- If reading down is not possible, s144 is incompatible with the ECHR because it criminalises residence in what was effectively the Claimant's home, where he already had an entitlement to apply for registration.
Defendant's Arguments
- The issue is one of statutory construction: a legal system should not enforce rights derived from criminal acts. Since s144 criminalises living in the property as a trespasser, the Claimant cannot rely on that criminal trespass to assert rights to registration.
- The LRA 2002 does not contain saving or transitional provisions for criminal trespass; all conditions must be met as at the date of application.
- Criminal trespass is not within the scope of adverse possession as adopted by statute; the Claimant's application is therefore defective and rightly cancelled.
- There is no reason to treat criminal trespass differently from other crimes in the context of adverse possession, and no sympathy should be shown to squatters.
- S144 was enacted to assist lawful owners in swiftly removing squatters, not to affect adverse possession claims.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Cleaver v Mutual Reserve Fund Life Association [1892] 1 QB 147 | Principle of public policy that courts will not enforce rights derived directly from a crime committed by the claimant. | Supported the general principle that rights should not arise from criminal acts, forming the starting point of analysis. |
| Lewisham BC v Malcolm [2007] EWCA Civ 763 | Statutory construction principle that contravention of a statute precludes reliance on that contravention to found an action or defence, unless Parliament indicates otherwise. | Confirmed the public policy bar against profiting from illegal acts, but allowed exceptions to protect innocent third parties. |
| Tinsley v Milligan [1994] 1 AC 340 | Enforcement of equitable interests despite underlying illegality if claimant does not rely on the illegal act to establish the interest. | Distinguished enforcement of rights already acquired from enforcement of illegal contracts; used to contrast with adverse possession claims. |
| Stone & Rolls Ltd (in liquidation) v Moore Stephens [2009] UKHL 39 | Ex turpi causa is a policy, not an absolute rule; application depends on context and justifications. | Emphasised nuanced application of public policy in barring claims based on illegality. |
| Holman v Johnson (1775) 1 Cowp 341 | Fundamental public policy principle that courts will not assist a claimant whose cause of action arises from their own illegal act. | Reaffirmed as foundational authority for the principle barring claims founded on crime. |
| R (Smith) v Land Registry [2009] EWHC 328 (Admin) | Criminal acts cannot be the basis for adverse possession claims, particularly involving obstruction of highways. | Relied on by Chief Land Registrar to cancel the Claimant's application; court found this principle not fully applicable here. |
| Bakewell Land Management Ltd v Brandwood [2004] UKHL 14 | Acquisition of rights by long use (prescription) is not prevented by tortious illegality if the landowner could have consented; criminal illegality distinguished. | Used to argue that criminal trespass should not automatically bar adverse possession if owner could consent, supporting Claimant's position. |
| J A Pye (Oxford) Ltd v Graham [2002] UKHL 30 | Definition of possession requires factual possession and intention to possess to the exclusion of all others. | Applied to clarify requirements for adverse possession and support analysis of acts constituting possession. |
| Lambeth LBC v Blackburn [2001] EWCA Civ 912 | Criminal entry does not necessarily prevent subsequent adverse possession. | Considered as modest support for Claimant's argument that criminal acts at entry do not bar adverse possession. |
| Addey v Stanhope School [2004] EWCA Civ 1065 | Illegality doctrine should not apply in an all-or-nothing way; different public policy considerations apply to different torts. | Supported nuanced approach to illegality in possession claims. |
| Hipperson v Newbury District Electoral Registration Officer [1985] 1 WLR 1060 | Criminal offences related to residence do not necessarily prevent rights based on residence (e.g., voting registration). | Illustrated exceptions to the public policy bar on claims based on illegal acts. |
| George Legge & Son Ltd v Wenlock Corporation [1938] AC 204 | Repeated violation of modern statute in public interest does not confer rights on wrongdoer. | Distinguished as not applicable because the statute in this case did not confer unfettered discretion to the owner. |
| Glamorgan County Council v Carter [1963] 1 WLR 1 | Illegal use of land cannot be resumed or confer rights under planning statutes. | Distinguished as dealing with different statutory regime and not directly relevant to adverse possession. |
| Buckinghamshire County Council v Moran [1990] Ch 632 | Explains difference between prescription (possession as of right) and limitation (possession as of wrong) in acquiring land rights. | Used to explain legal distinctions relevant to adverse possession claims. |
Court's Reasoning and Analysis
The court began by identifying the key legal question: whether s144 LASPOA, which criminalises trespass by "living in" a residential building, prevents adverse possession claims leading to registration of title under the LRA 2002. The court accepted the foundational principle of public policy that rights should not be founded on criminal acts, citing authorities such as Cleaver and Holman v Johnson. However, it recognised that this principle is not absolute and must be balanced against competing public interests.
The court analysed the concept of adverse possession as a common law doctrine adopted by statute, which traditionally permits rights to arise from tortious (unlawful but not criminal) possession. It considered the Defendant's argument that criminal trespass should be excluded from adverse possession but found no clear authority or indication from Parliament that the 2012 Act intended to create such an exception.
The court examined the decision in R (Smith) v Land Registry, which held that criminal acts could not found adverse possession, but distinguished it on the basis that it involved public highways where rights could not be extinguished. The Court of Appeal's subsequent ruling in that case did not endorse the criminality limb, weakening its authority for the Defendant's position.
Significantly, the court relied on Bakewell Land Management Ltd v Brandwood, which held that public policy does not bar acquisition of rights by long user even if the acts were tortious or criminal, provided the landowner could have consented, removing the criminality. This rationale was applied analogously to adverse possession, supporting the Claimant's position that criminalisation under s144 LASPOA does not negate the possibility of adverse possession claims.
The court noted that s144 LASPOA criminalises only "living in" a residential building and does not extend to the curtilage or other forms of possession, which could still found adverse possession claims. It found the Defendant's interpretation would lead to arbitrary and incoherent results, inconsistent with Parliamentary intent and the carefully balanced provisions of the LRA 2002.
Regarding ECHR compatibility, the court accepted submissions that s144 LASPOA was enacted to provide a swift remedy for property owners against squatters and did not constitute an unlawful interference with Convention rights in cancelling registration applications. It concluded that no reading down of s144 was necessary but identified a possible minimum reading down to protect those entitled to apply at the commencement of the Act.
Ultimately, the court held that the Chief Land Registrar erred in law by cancelling the Claimant's application on the basis that s144 LASPOA prevented reliance on adverse possession including periods of criminal trespass.
Holding and Implications
The court QUASHED the decision of the Chief Land Registrar cancelling the Claimant's application for registration of title by adverse possession.
The Claimant's application must now proceed through the next stage under Schedule 6 of the Land Registration Act 2002. This decision clarifies that the criminalisation of trespass by "living in" a residential building under s144 LASPOA does not prevent adverse possession claims to registered land, preserving the operation of the LRA 2002 provisions as Parliament intended. No new precedent altering the balance between criminal trespass and adverse possession was established beyond the interpretation of the statutory provisions in this context.
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