Title to land – Adverse possession – Criminal trespass – Paragraph 1 of Schedule 6 to Land Registration Act 2002 – Section 144 of Legal Aid, Sentencing and Punishment of Offenders Act 2012 – Claimant applying to register title to property by adverse possession – Defendant cancelling application on ground that claimant’s criminal offence of trespass preventing reliance on period of adverse possession – Whether defendant erring in that view – Claim allowed
In November 2012, the claimant applied to be registered as the proprietor of a residential property, in place of the then registered owner, on the ground that he had acquired title by 10 years’ adverse possession within the meaning of para 1 of Schedule 6 to the Land Registration Act 2002. He had first entered the property in the 1990s after being informed that the owner had died and that her son had not been seen since 1996. At that time, the property was lying empty and had been vandalised. After entering the property, the claimant had repaired the roof, cleared the garden and taken steps to make the property wind and watertight. He had subsequently replaced ceilings and skirting boards, electric and heating fitments and plastered and painted walls, with the intention of making the property his permanent residence. He had moved in at the end of January 2012. In his application, he stated that he had treated the house as his own since 2001.
The defendant cancelled the claimant’s application on the ground that section 144 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, which criminalised acts of trespass that consisted of “living in” a residential building, prevented the claimant from relying on any period of adverse possession to establish a claim for registration as proprietor of the property. He took the view that Schedule 6 to the 2002 Act impliedly required that possession by an applicant for registration should not have constituted a criminal offence for any part of the 10-year period of adverse possession. The claimant sought judicial review of that decision.
Held: The claim was allowed.
(1) Section 144 of the 2012 Act had been enacted on the assumption that adverse possession was not affected by whether the trespassory acts of possession were criminal or merely unlawful torts. It was only “living in” the building that was criminalised, so that possession for some other use would not be criminal trespass and could found a claim to title by adverse possession. 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 preclude a successful claim to adverse possession. Before any claim could arise in reliance on adverse possession, 10 or 12 years of adverse possession had to pass without effective action by the 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 arose not where the trespass was a crime, but where the land in respect of which adverse possession was claimed was itself subject to rights that could not be extinguished, as with a highway, or was land of which a landowner/statutory undertaker could not be dispossessed because the statutory provisions under which it held the land in effect made the land inalienable or title inextinguishable, or created preconditions for title transfer that were unmet by adverse possession alone. Accordingly, the defendant’s decision was founded on an error of law as to the effect of section 144 of the 2012 Act on adverse possession: Buckinghamshire County Council v Moran [1990] Ch 632, R v Oxfordshire County Council, ex parte Sunningwell Parish Council [1999] 2 EGLR 15 and Bakewell Management Ltd v Brandwood [2004] UKHL 14; [2004] 2 EGLR 15 considered.
(2) No offence would be committed by someone who had not lived in the house, but had possessed it through acts of repair, maintenance and exclusion, intending to use it for tenants. Accordingly, that form of adverse possession could suffice for an application under Schedule 6 to the 2002 Act.
(3) The claimant had never had possession in the sense protected by the European Convention on Human Rights, which required possession sufficiently established to amount to a legitimate expectation of obtaining effective enjoyment of a property right. The system of registration of title precluded any such legitimate expectation arising simply through the passage of time. Until the relevant 10-year period had passed without possession being a criminal offence, the claimant could have no more than a hope that he would complete 10 years tortious but not illegal possession. After that, he had the right to make an application, but no right to succeed. Nor did he have any right to prevent parliament from changing the conditions required for registration of title to land which he did not own, but which someone else did.
Philip Rainey QC and Marc Glover (instructed by Neumans LLP) appeared for the claimant; Jonathan Karas QC and Katrina Yates (instructed by the Treasury Solicitor) appeared for the defendant; David Forsdick (instructed by the Treasury Solicitor) appeared for the interested party (by written submissions).
Eileen O’Grady, barrister
