This is a tale that shows what happens when legislation is passed in a hurry, without thinking things through, and the potential mess that can result. It also shows how judges can use common sense and legal ingenuity to remedy things, or at any rate limit the damage. These aspects have wider implications in these times of the restriction of Legal Aid and the Jackson changes to the Civil Procedure Rules that spawned the Mitchell case and all the procedural problems that have flowed from that. Perhaps I will expand on those on another occasion.
However, the story for today concerns Mr Best the builder, and the case is Best v Chief Land Registrar  EWHC 1370 (Admin). Mr Best was working on a property nearby in 1997 when he noticed 35 Church Road, Newbury Park, which was derelict and appeared to have been abandoned. The neighbours told him that the old lady who owned it had died and that her family don’t seem to be doing anything about it. So, no doubt with an eye on a potential profit, he secured it, repaired the roof, and over the years worked on the property when he had time, eventually moving in himself January 2012.
Now once upon a time there was a 12 year limitation period for land, and once you had occupied it for 12 years it was yours. But under the Land Registration Act 2002 there is now a two-stage process for registered land – you register an interest with HM Land Registry after 10 years adverse occupation, HMLR send formal notice to the registered owner, and if they don’t object you get registered as the owner, and their titles is extinguished. But if they do object then unless you can show estoppel, or other legal reasons, or it is a boundary dispute, then you will lose and they can evict you, and almost certainly will.
Now whether Mr Best wanted to recoup his investment, or wanted to live in the house that he had brought back from the dead I can’t say, as the report is silent on this point. However he asked HMLR to set the wheels in motion, and hit a snag. The Chief Land Registrar refused to send out the notice on the grounds that Mr Best had been committing a criminal offence by living in a residential property as a trespasser since s144 LASPO 2012 came into effect on 1st September 2012. The Registrar considered that you couldn’t acquire adverse possession for good public policy grounds, and besides the High Court had decided this in the case of R (Smith) v Land Registry  EWHC 328.
Smith was about a man who claimed to have acquired a bit of a public highway from Cambridge CC by storing cars and other things on it for many years. HHJ Pelling QC, sitting in the High Court, said that he couldn’t, for three reasons:
- it was a criminal offence under s137 Highways Act 1980 to obstruct the public highway and you couldn’t get rights by committing criminal offences as a matter of public policy;
- there was a long series of cases to show that you couldn’t get adverse possession of a public highway except perhaps in really exceptional circumstances;and
- if it was possible to get possessory title then it would be subject to the public rights of way anyway as you cannot extinguish them by adverse possession.
This decision was upheld by the CA mainly on the last two of these grounds.
Nothing daunted, Mr Best’s counsel argued that there was a world of difference between the Highways Act, backed up by a long history of the inalienability of highways, and s144 LASPO, which was a section tacked on to a totally different statute (the Legal Aid, Sentencing and Punishment of Offenders Act 2012) and which merely imposed a criminal liability on certain conduct, and didn’t set out to regulate the whole of the acquisition of title by adverse possession. Furthermore, even the paper owner of land couldn’t obstruct the highway that passed over it, or allow others to do so save by exercising powers under certain legislation for certain limited times and purposes. That did not mean however that all unlawful acts would prevent prescriptive rights being acquired.
Take the case of Bakewell Management v Brandwood  UKHL 14. Here the HL dealt with the awkward problem that had built up following an earlier case of Hanning v Top Deck Travel. This held that as there was a prohibition in s 193 Law of Property Act 1925 to driving on a common without lawful authority it was impossible to acquire a right to do so by prescription, even by more than 20 years’ use. Freeholders took advantage of this by claiming large sums for vehicular access to large houses on commons all over the country. In Bakewell the HL held that prescription had no problem with people acting unlawfully ie tortiously. That is what it meant – doing things without a legal right for long enough. And as s193 allowed a landowner to grant authority, the mere fact that there was a criminal offence involved didn’t make that much difference. The landowner might have granted permission in a lost recent grant – the normal legal fiction for a prescriptive right being that the owner had granted the right recently but the document had been lost. This couldn’t happen with an obstruction of a public highway (as in Smith). And it showed that a mere criminal offence was not enough.
In Best’s case Ouseley J looked at the complicated and clearly fully-considered scheme for dealing with prescriptive rights dealt with by the LRA 2002 and contrasted it with the perfunctory and clearly bolt-on offence created by s144 LASPO 2012. He decided that s144 created a new offence to deal with a short-term problem of people squatting in residential premises, so as to enable the police to deal with them more easily, rather than alter the law relating to prescriptive rights as a whole.
[As a sideline, many lawyers protested about the pointlessness of the s144 legislation, covering as it does many actions that are already offences under s7 Criminal Law Act 1977 and elsewhere and I covered this in a piece at the time.]
The 2012 offence only deals with squatters who enter as trespassers on residential buildings and live there or intend to do so. It doesn’t cover gardens, sheds garages etc, or living in offices or factories, or occupying a residence but not living there – eg using as a workshop or concert venue. So it is very restricted. And it makes no distinction between people who have just entered and people who have been there for 30 years – any residential occupation after 1st September 2012 is an offence. It is a very blunt tool.
Ouseley J concludes after going through the authorities, and pointing out the the trespass remained a crime that could be the subject of prosecution if appropriate, in para 86
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. Before any claim could arise in reliance on adverse possession, ten or twelve years of adverse possession would have had to pass without effective action by owner or by an enforcement authority, whether in civil or criminal proceedings. If that were the position, title could be extinguished or a change in owner registered (if the statutory processes were completed satisfactorily), without any public interest being engaged, unless particular circumstances meant that adverse possession should not of itself be a sufficient basis for an extinguishment of or transfer of title. Those circumstances are not where the trespass was a crime, but where the land in respect of which adverse possession was claimed was itself subject to rights which could not be extinguished, as with a highway, or was land of which a landowner/statutory undertaker could not be dispossessed because of the statutory provisions under which it held the land, in effect making the land inalienable or title inextinguishable, or creating preconditions for title transfer which were unmet by adverse possession alone. That would cover at least a number of situations in which trespass would be a criminal offence but it would not involve focussing on the fact of crime, rather it would involve focussing on whether extinguishment or transfer of title as a result of adverse possession was appropriate in the public interest in respect of that land.
He held that the Chief Land Registrar was wrong and that Mr Best did qualify for 10 years adverse possession and was entitled to invoke the procedure under Sch 6 LRA.
So Parliament has not abolished the concept of adverse possession to dwellings by accident, while leaving it in being for the gardens and garages, and for offices and factories. It remains as it always has, and s144 is just an offence that the police can invoke on trespassers if they want to do so. Anecdotal evidence is that they are no keener to use their powers under s144 than they were to use their similar powers under s7 Criminal Law Act 1977. But only because the Land Registry needed to know the position and was prepared to take the case to a High Court Judge to get a decision. And because Ouseley J worked his way carefully through things to get the right result, with the aid of Philip Rainey QC for Mr Best.
Whether Mr Best wins in the end is open to more doubt. There has been a lot of publicity as a result of the court case, and the house is apparently worth £375,000 or so. If the true owner comes forward his argument may all have been in vain. And I suspect that the fact that he has clarified the law for the rest of us will be very little comfort to him.
There is a fuller legal coverage of Best in the excellent Nearly Legal blog here.
PS I ought to also mention Jonathan Karas QC for the Registrar
UPDATE – for news on an appeal to the CA in Best see here.