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.

Extra, Extra – Updates on Recent Posts

You never finish this blogging lark, because as soon as you’ve put out your finished and lovingly crafted article somebody comes along and changes things, so it’s out of date. And that’s why I’m here to update three of my recent posts rather than watching TV. The stresses of journalism!

Huzar v Jet2

I mentioned this case of flight delays on 4.9.14 and said that the airline had applied for permission to appeal to the Supreme Court. Well, there is now a note about this application on the SC website (here) and the application for leave will be considered on the papers together with a similar application in the case of Dawson v Thomson Airways (which is on the limitation period applicable for these claims) and a decision is expected in early November 2014. If successful the appeals will be heard probably some time in the first half of 2015. So we have to wait a bit longer for a final decision.

Robertson v Swift

This is about The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 and I commented on them on 3.6.14. You will remember that there is a new regime of information to give to consumers who enter into contracts on-premises, off-premises or by distant selling with effect from 13.6.14. Well, there has been a decision in the SC about the interpretation of the earlier regulations and in particular what happens if the trader fails to supply the cancellation information that he should have, as the cancellation period is defined in those regs as running for 7 days from the giving of the information. And not without some hesitation the SC ruled that, despite the argument that if there was no information the period never started, the better interpretation was that the period never ended, and so the consumer won.

No doubt important to the parties, although the argument was about a claim for about £3,750 and a counter-claim for £1,000, so there must be more to it than meets the eye. But irrelevant to the rest of us as the new regulations provide expressly that the right to cancel runs from the making of the contract until 14 days after the cancellation information is provided. Perhaps the draftsman had the Robertson case in view.

Best v Chief Land Registrar

Mr Best was the enterprising builder who rescued a derelict house and tried to claim it by prescription. I dealt with it on 14.5.14, when I reported that Mr Best had been allowed to take the first step in registering title at HM Land Registry. The absent owners still seem to be absent, but the Land Registry have been granted leave to appeal to the CA, presumably with a view to sorting this matter out once and for all. These appeals usually take getting on for 12 months, so again watch this space. My only worry is that with all the publicity involved the owners will come out of the woodwork in time to thwart his claim. Which may be Mr Best’s worry as well.

As soon as there is any news on these three I’ll be tapping away to let you know. Now let’s go and feed the cats, and also see if Scotland has floated off into the North Sea while I’ve been at this.

PS – For the result of the Best case in the CA see here.

Excuse Me Sir, is this Your House?

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 [2014] 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 [2009] 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 [2004] 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.