All for the Best – Best v CLR in the CA

R (Best) v CLR and SoS for Justice [2015] EWCA Civ 17

All legal systems have limitation periods, especially for claims relating to the ownership of land. They deal with the not uncommon scenario where somebody occupies somebody else’s land for a long period of time, without being challenged, usually improves or develops it, and then the paper owner returns and tries to get it back. If they have left things too long (and in England and Wales the period was generally 12 years) the court won’t help them and will award the land to the occupier. This is known as gaining prescriptive rights, adverse possession or squatting.

You might think that this was unfair on the paper owner who gets no compensation for their loss. However, without something of this sort land can be effectively sterilised for ever if an owner is lost, all landowners have to worry about the possibility of any slight defect in their title being exploited some time in the future, and boundary disputes have the possibility of going on for ever.

Last year I commented on the case of Best v Chief Land Registrar, which had been decided by Ouseley J in the High Court. Mr Best, a builder, found an abandoned house, did it up and eventually moved in some 10 years later. He then decided, naturally enough, to take the steps needed to register his ownership with the Land Registry, but was prevented because the CLR refused to send out the necessary 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. He considered that on public policy grounds it was not possibe to acquire rights by living in a house while this invoved committing a criminal offence.

Ouseley J disagreed. He decided that the criminal offence in s144 was just bolted on to an otherwise unrelated piece of legislation (just read the title) and wasn’t meant to affect the elaborate system of registration of title to land that had been set out in the Land Registration Act 2002. So he ordered the Registrar to send out the notice.

I assume that the Registrar wanted to have the law clarified, so he appealed. Ouseley J’s decision wouldn’t be binding on any other High Court judges, and so any future case may be decided the other way, which would make things uncertain and unpredictable, two words that are not at all welcome at HMLR. So Mr Best was left on tenterhooks until things had been decided, as the true owner can come forward at any time before the registration takes place and can get his house back just for the asking.

Well, the CA has looked at things and made its decision, and much to Mr Best’s relief no doubt has sided with him and against the Registrar. In a regrettably long and difficult to summarise judgment given on 21st January 2015 the CA explored the law on ex turpi causa (claims arising out of your own wrongs) at length and decided that s144 LASPO was not intended to alter the law on adverse possession. As Sales LJ pointed out in his leading judgment, if s144 had been intended to do this you would have expected some mention of the subject in the section. But there is nothing.

I will leave others to draw out all the threads in the judgment and plait them into fancy shapes – the  Nearly Legal blog is particularly goood at this sort of thing. In the meantime we must all continue to hope the Mr Best gets something out of it in the end. There were reports online that a son of the deceased owner of the house may have come to light.

PS Nearly Legal post on this appeal is here.  And there is another good note on the Al’s Law blog here too.

Advertisements

Author: Coventry Man

A perspective from a litigation lawyer in the Midlands. After many years in Coventry I am now with David Lee Solicitors in Kenilworth, helping people with all sorts of litigation, especially property and landlord & tenant problems.

5 thoughts on “All for the Best – Best v CLR in the CA”

  1. The appeal was won by mr best

    It had also helped my application for adverse possession

  2. As it happens I plaited the judgment into a reasonably fancy shape here: https://alrich.wordpress.com/2015/01/21/court-of-appeal-upholds-keith-best-ownership-of-squatted-house/
    The main point is that if Parliament had intended to change the law on adverse possession it should have done so explicitly. Indeed, the Court of Appeal case revealed that ministers were asked specifically about this issue (since it was obvious it was an issue) and came up with nothing. So the court could legitimately decide no change was intended by Parliament. Ex turpi does not apply because that is a doctrine, not a law – and it is therefore open to a court’s judgment as to the what benefits public policy. Since adverse possession has a public policy content and adverse possession was untouched by LASPO, then it remains in place. It was a clever judgment intended to make the case Supreme Court-proof – but we’ll see

    1. I agree. A much better summary of the legal issues than I managed. The best argument (groan!) in my view is the bolt-on one: an Act called the Legal Aid, Sentencing and Punishment of Offenders Act is unlikely to be intended to abolish the law of adverse possesssion. Especially if it doesn’t say so expressly.
      We’ll see if this goes any further.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s