UK: Squatters Can Benefit From Illegal Occupation

Last Updated: 22 July 2014
Article by Edward Gamble

Summary and implications

Since September 2012, it has been a criminal offence to squat in a residential building under section 144(1) of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Section 144(1)).

Most property in England and Wales is registered at the Land Registry. Since 2003, a squatter who has been in adverse possession of registered property for 10 years or more can apply to the Land Registry to be registered as the owner under the Land Registration Act 2002 (LRA 2002).

One question is whether Section 144(1) prevents time running for the purposes of applications to the Land Registry to claim adverse possession of residential buildings?

We now have some guidance on this issue following the recent case of R (Best) v Chief Land Registrar [2014] EWHC 1370 (Admin).

The Land Registry refused to register Mr Best as registered proprietor.

Mr Best applied to the Land Registry in November 2012 (shortly after Section 144(1) came into force) claiming adverse possession of a residential property. The Land Registry refused his application on the basis that, in the Land Registry's view, Mr Best could not rely on any period of adverse possession which involved a criminal offence to support his claim.

The Land Registry took this approach following part of the reasoning in another High Court case, R (Smith) v Land Registry [2009] EWHC 328 (Admin).

Mr Best disagreed with the Land Registry and brought a claim for judicial review of the Land Registry's decision.

Previous cases

The court in the Smith case held that a squatter could not obtain title by adverse possession over part of a public highway. Part of the reasoning in Smith was that obstructing the highway is an offence under the Highways Act 1980. The claimant in Smith appealed unsuccessfully to the Court of Appeal but the issue of the illegality of obstructing the highway did not form part of the Court of Appeal's decision, so Smith was not a binding decision on the illegality point.

Previously, in Bakewell Management Ltd v Brandwood [2004] 2 AC 519, the House of Lords held that property owners claiming prescriptive rights of way across common land to access their properties could claim those rights despite the fact that driving across the common without the owner's permission constituted an offence under the Law of Property Act 1925.

However, the facts and criminal offences involved in Smith and Bakewell were different from each other, and from the facts and offences in Best.

The decision: Mr Best could rely on his illegal occupation of the property.

In Best, the court drew a distinction between the aim of Section 144(1): namely, to provide the owners of residential buildings with a swift remedy for dealing with squatters and the aim of the rules on adverse possession under LRA 2002: namely, to balance the rights of the registered owners of property and those of squatters where properties have been occupied for many years.

The court held that, although squatting in a residential building is now a criminal offence, a squatter can still rely on that occupation, despite its illegality, to establish a claim for adverse possession under LRA 2002.

Accordingly, the Land Registry had made an error in law rejecting Mr Best's application.

Implications

Best is a High Court decision, so it is persuasive rather than binding on other courts. However, the decision provides some helpful clarification and draws a clear distinction between the criminality of squatting in residential buildings on the one hand and the ability of long-standing squatters to claim adverse possession on the other.

As far as residential property is concerned, Section 144(1) makes it easier for owners to remove squatters and correspondingly harder for squatters to remain in occupation long enough to claim adverse possession.

However, owners of residential property need to be aware that Section 144(1) does not remove the need for owners of residential property to be vigilant. In particular, property owners should make sure squatters are removed, or have their occupation regularised, well before there is any risk of them obtaining rights by adverse possession.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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