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.

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.

More Fuss about Squatters

As  you are no doubt aware, the new law against squatting, s144 of the remarkably comprehensive Legal Aid, Sentencing and Punishment of Offenders Act 2012, comes into force on 1st September 2012.

This is not completely unexpected. About a year ago the Government, following pressure from the new Conservative MP Michael Weatherley, promised in a sudden blaze of publicity to make squatting a criminal offence.  Some papers, such as the Daily Mail, got terribly excited about this. Other housing lawyers got equally excited, and wrote a letter signed by 160 of them (including me)  to The Guardian saying that the problem was already covered by lots of laws, and that if squatting was a problem, which they tended to doubt, then a new criminal law was not the answer. But to nobody’s surprise the Daily Mail point of view prevailed, and s144 was born.

I covered all this in a piece on Coventry View at the time  – The Fuss About Squatters  – and I won’t go over  all the old ground again. It will be enough to say that

  • The normal laws of criminal damage, theft, assault etc cover breaking in, stealing things, threatening violence and so on;
  • Occupying a home (or a potential home) and not leaving when requested is already an offence under s7 Criminal Law Act 1977 and the police have power to arrest and prosecute anybody who does not leave. This includes gardens, sheds and so on.
  • Occupying vacant property that is not a home allows the owners to go to a civil court and get an interim possession order. This takes a day or two and if the squatters don’t then leave they again commit an offence which the police can act upon.

There are also civil remedies

  • self-help – a residential owner can go in with his friends or security staff and throw them out;
  • squatters on land (not in buildings) can be removed by bailiffs without any court proceedings;
  • possession orders can be obtained in the civil courts and enforced by the High Court Enforcement Officers (formerly sheriffs) usually within a week or so. The police have to assist HCEOs on request.

The problem has always been that the police don’t like getting involved in this sort of thing. They are uncomfortable, and have many other things to do. So they say “it’s a civil matter” and tell the owners to go off to court, when there is very often no need to do so.

The New Law

Will the new law make any difference? Well, it makes it an offence if

  • a person is in a residential building having entered as a trespasser
  • they know or ought to know this
  • they are living in the building or intend to do so.

The new offence doesn’t apply to tenants holding over after the end of a lease or licence, even if they leave and re-enter the building.

Note that the offence only covers a “residential building” ie one that is designed or adapted before the time of entry, for living in. And a “building” includes all structures or parts of structures (including temporary or moveable structures).

In order to prevent a wild rush last week it makes no difference whether the entry was before or after the section came into force. And the police have been given express powers of entry and arrest to enforce the new law.

So the criminal law, and possible intervention of the police, has been extended to cover residential properties where there is nobody living in them (or allocated to live there – a displaced potential residential occupier), but not their gardens outhouses etc. It doesn’t cover commercial properties, or land as such.

Whether this will make any difference in practice will depend entirely on whether the police give the matter any priority over their other work. Given their attitude to the other offences mentioned above this looks unlikely. And the owners will have to fall back on the civil remedies that they retain.

A possible damp squib. Although the new political Police Commissioners may decide to use it as a way of making something of a mark. Who knows? We shall see.

The Fuss About Squatters

Those of you who don’t live under stones will be aware of the recent campaign to make squatting a criminal offence, and the opposition from various angles. There has been a lot of smoke generated by the argument, which has been the cause of more fuss, including a letter to The Guardian signed by 160 housing lawyers and a response by Michael Weatherley MP (all extensively covered by the excellent Nearly Legal blog  at so it would be helpful to set out some of the facts.

The sort of squatting that is at issue is short-term occupation of land or buildings without the owner’s consent. It must not be confused with

  • Squatters rights – ie gaining ownership of land by 10 or 12 years occupation;
  • Travellers living on land they own without planning permission – as at Dale Farm;
  • Tenants holding over after their lease has expired – usually as periodic tenants.

These are all interesting subjects for another day, and this piece will concentrate on the short-term occupants. It won’t deal with the possible social consequences than criminalising squatting may have on the homeless population either.

Now squatters are often their own worst enemies.  Being scruffy and unwashed, and doing unspeakable damage to a building by failing to master the plumbing makes them hard to like. However, this does not mean that making squatting itself a criminal offence will achieve anything . There are a lot of laws in place already which cover the area:

  • There are all the normal criminal laws on criminal damage, abstraction of electricity, theft, assault and so on to deal with breaking in, damaging the property, stealing electricity and other things, and which the police have the same powers to enforce against squatters as anybody else, although it is fair to say that proof can be difficult to obtain.
  • Occupying  a home and failing to leave when requested by the owner who is living there, or intending to do so, is an offence under the Criminal Law Act  1977 and the police have power to arrest and prosecute  anybody who does not leave.
  • Occupying vacant property that is not a home is not in itself a criminal offence. However the owners can go to the civil courts for a possession order. If they get an interim possession order, which normally takes a few days, the squatters have 24 hours to leave or again commit a criminal offence, and the police again have powers of arrest and prosecution.
  • And there are various specialised offences such as trespassing on MoD property, camping on a common and so forth that might come into play.

All of this depends on the police, on which more below. But an owner is not restricted to waiting for the police to respond. He can take action himself;

  • A residential owner can break in and use reasonable force to remove any occupants. This can include employing security staff, or friends, to help him. Not always the best course, but perfectly legal.
  • Occupants of land (not including buildings) can be removed by bailiffs instructed by the owner. This can often be achieved within a couple of days and is widely used against travellers who encamp on say office car-parks .
  • Or the owner of a house or other building or land can get a possession order in the civil courts, which takes a few days, and then enforce it with the Sheriff (now called the High Court Enforcement Officer) which again takes a few days. Many squatters try to leave before the HCEO arrives, and the police have to attend and assist the HCEO on request.

There are some problems in the current situation. The police are often very reluctant to take any action despite the extensive powers set out above, telling the owners that it is “a civil matter”. Their position is understandable because they have limited resources, inadequate training on the point, and don’t want to get into arguments between an owner and a tenant or former tenant who is being unlawfully removed, when they might become personally liable for their actions. They are much happier when the matter has been decided by the courts. Creating more offences won’t help here. They need more training, and a more vigorous attitude to enforce the existing laws.

And the civil route involves some delay, albeit normally only days, and cost. But the people who rely on it are either not homeowners but office or park owners, and ought to be able to afford something, or are homeowners who have been let down by the police (see above). There may be some small tweaks to improve the process, but  generally it works reasonably well.

The big problems occur when a property has been occupied for a substantial time, the owners have not bothered to do anything, and a lot of damage is done. Or the owners pick inexperienced lawyers and don’t take advantage of the speeded-up processes that are available. Or they aren’t really squatters but tenants and have an arguable right to be there which needs to be decided by somebody.

No, this is not a problem that a new offence will cure, and anybody who is proposing this must know this in their hearts. One is forced to think that there might be other motives – publicity and a desire to please Daily Mail readers, for instance. But I really couldn’t comment on that.