Adverse possession – Registration of title – Criminal trespass – Land Registration Act 2002 – Legal Aid, Sentencing and Punishment of Offenders Act 2012 – Respondent applying to register title to property under para 1 of Schedule 6 to 2002 Act on grounds of 10 years’ adverse possession – Appellant cancelling application by reference to section 144 of 2012 Act criminalising acts of trespass by “living in” residential building – Effect of that provision in relation to adverse possession – Whether respondent barred from relying on adverse possession to extent that acts of possession amounting to criminal offence – Appeal dismissed
In November 2012, the respondent applied to be registered as the proprietor of a residential property on the ground that he had acquired title by 10 years’ adverse possession ending on the date of the application, within para 1 of Schedule 6 to the Land Registration Act 2002. He had first entered the property in the late 1990s, when it was lying empty and vandalised, and had proceeded to repair the roof, clear the garden and take other steps to make the property wind and watertight. He had later carried out further work to the property, including replacing ceilings, skirting boards and electric and heating fitments, and plastering and painting the walls, with the intention of making it 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.
Meanwhile, in September 2012, section 144 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 had come into force so as to criminalise acts of trespass by “living in” a residential building; consequently, from that date onwards, the claimant’s occupation of the property had been a breach of the criminal law.
The appellant cancelled the respondent’s application for registration on the ground that section 144 of the 2012 Act prevented time from running for applications for registration of title by adverse possession in respect of residential properties; he considered that it was an implied requirement of Schedule 6 to the 2002 Act that the adverse possession relied on should not have been a criminal offence for any part of the relevant period.
The respondent was successful in judicial review proceedings to quash that decision. The judge held that the enactment of section 144 of the 2012 Act was not intended to have any effect on the operation of adverse possession a trespasser’s ability to acquire title by adverse possession of land: see [2014] EWHC 1370 (Admin); [2014] 2 EGLR 133. The appellant appealed.
Held: The appeal was dismissed.
Criminally unlawful activity contrary to section 144 of the 2012 Act would not prevent a person’s actions from qualifying as relevant adverse possession for the purposes of the 2002 Act. Adverse possession was founded on the tort of trespass to land; in that context, the public interest in land being put to good use, and in having clear rules to govern acquisition of title to land which had been abandoned, had been taken to override the general concern that a person should not benefit from their unlawful action (the illegality principle).
The application of the illegality principle was not a matter of discretion for the court; rather, the court’s task was to identify, in the specific context, a particular rule which reflected the relevant underlying policy in that area in an appropriate way. A number of different rules might apply, each tailored to the particular context in which the principle was said to apply and depending on the issues of fairness and policy that arose in that context: Hounga v Allen [2014] UKSC 47; [2014] 1 WLR 2889 and Tinsley v Milligan [1994] 1 AC 340; [1993] EGCS 118 applied. While a criminal act was “the paradigm case” for application of the illegality principle, there could be exceptions in cases where the public policy associated with the particular crime in issue was not centrally engaged and was outweighed by other general public policies inherent in the relevant civil law to be applied: Lewisham London Borough Council v Malcolm [2008] UKHL 43; [2008] 1 AC 1399; [2008] PLSCS 181 and Les Laboratoires Servier v Apotex Inc [2014] UKSC 55; [2014] 3 WLR 1257 applied.
Section 144 of the 2012 Act had been introduced principally to assist owners of residential buildings in a practical way, in particular in gaining re-entry to houses occupied by squatters, rather than because of any perceived wider public interest. There was no indication of any intention that the new provision should affect the operation of the carefully worked-out provisions of the 2002 Act in respect of acquisition of title by adverse possession. Balancing the competing public policies inherent in the 2002 Act and in section 144 of the 2012 Act, the proper conclusion was that activity in breach of the criminal law in the form of section 144 did not fall within any implied qualification in the 2002 Act by reference to the illegality principle. The priority given to the public interest in active use and marketability of land should continue to be recognised even where aspects of a person’s adverse possession of land involved the commission of a criminal offence under section 144 of the 2012 Act.
Per curiam: Although the public policy concerns underlying acquisition of title by adverse possession were very strong, especially in relation to unregistered land, it was doubtful whether parliament had intended the illegality principle to be wholly excluded from having any potential impact in relation to the operation of para 1 of Schedule 6 to the 2002 Act. It was difficult to say, in advance, that parliament had intended the illegality principle to be excluded in relation to every conceivable form of criminally unlawful action bearing upon acquisition of title to registered land by adverse possession.
Jonathan Karas QC and Katrina Yates (instructed by the Treasury Solicitor) appeared for the appellant; Philip Rainey QC and Marc Glover (instructed by Neumans LLP) appeared for the respondent; the interested party, the secretary of state for justice, did not appear and was not represented.
Sally Dobson, barrister
