The Land Registry’s practice guides (LRPG) contain valuable information concerning the law and the registry’s practice. LRPG 5, which is entitled “Adverse possession of unregistered land and transitional provisions for registered land in the Land Registration Act 2002”, explains the law that applies to claims by squatters.
The guide explains that squatters cannot acquire title to land that is subject to public rights of way. This principle is invoked surprisingly often to defeat claims to ownership of land that forms part of a highway. The decision in R (on the application of Smith) v Land Registry [2009] PLSCS 57 demonstrates the point neatly.
The Land Registry’s practice guides (LRPG) contain valuable information concerning the law and the registry’s practice. LRPG 5, which is entitled “Adverse possession of unregistered land and transitional provisions for registered land in the Land Registration Act 2002”, explains the law that applies to claims by squatters. The guide explains that squatters cannot acquire title to land that is subject to public rights of way. This principle is invoked surprisingly often to defeat claims to ownership of land that forms part of a highway. The decision in R (on the application of Smith) v Land Registry [2009] PLSCS 57 demonstrates the point neatly. The squatter applied to register the freehold title to land upon which he had parked caravans. He claimed to have acquired title by adverse possession. The registry rejected his claim, arguing that: (i) the land formed part of the highway; (ii) it is a criminal offence to obstruct the highway; and (iii) it is impossible to acquire rights through criminal acts of this kind. The High Court agreed with the registry, ruling that it had correctly rejected the squatter’s claim. It is interesting to contrast the outcome of this case with the recent controversy concerning vehicular rights of way across common land. The House of Lords eventually put paid to the controversy in Bakewell Management Ltd v Brandwood [2004] UKHL 14; [2004] 2 EGLR 15; [2004] 20 EG 168. It ruled that landowners who had driven over common land illegally had, none the less acquired prescriptive rights of way because the owner of the common could have authorised the use by granting easements across the common. In Smith, the judge ruled that the squatter was unable to rely upon his unlawful actions to establish adverse possession because the highways authority did not have the power to authorise the squatter’s obstruction of the highway. In each case, the outcome turned on whether the consent could lawfully be granted to remove the criminality of the user. Acts that cannot be authorised remain unlawful, and this is why claims to adverse possession of highways have not found favour with the courts. The position may be different if the roadway is not subject to public rights of way. None the less, it can still be extremely difficult to establish a claim to adverse possession in such cases: see, for example, the decision in Simpson v Fergus (2000) 79 P&CR 398, in which the Court of Appeal rejected a claim by a landowner who had marked out parking places in a private road to stop others from using them, without actually fencing them off. The court ruled that the landowner’s actions were insufficient to establish possession. Forewarned is forearmed. LRPG 5, states that the registry will consult the relevant highway authority before deciding how to deal with a squatter’s application if it appears that the land in question could form part of a highway. Consequently, practitioners would be well advised to consider whether land is subject to public rights of way before submitting applications on behalf of squatters. Allyson Colby is a property law consultant
