Best v The Chief Land Registrar & Anor

Criminalising residential squatting under section 144 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 does not, without more, prevent the possession from being adverse possession for limitation or registration purposes. The public policy against obtaining rights through crime is an important starting point, but it may yield to the countervailing public interests served by adverse possession, including ending stale claims and resolving uncertainty of title. The relevant question is whether adverse possession of the land should be effective in the public interest, rather than whether the acts were criminal. The position may differ where the land is subject to rights or statutory restrictions which adverse possession cannot extinguish. The Chief Land Registrar therefore erred in treating criminal residence as incapable of supporting an application under Schedule 6 to the Land Registration Act 2002.

The claimant had occupied and improved an unregistered dwelling owned by another person. He applied under paragraph 1 of Schedule 6 to the Land Registration Act 2002 to be registered as proprietor after ten years of adverse possession.

After section 144 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 came into force, the Chief Land Registrar cancelled the application. He considered that the claimant could not rely on possession which involved the criminal offence of living in a residential building as a trespasser. The central issue was whether criminalisation of the possession prevented it from being adverse possession for the purposes of the 2002 Act.

1. The claim succeeded. The Chief Land Registrar’s decision was quashed. The application was to proceed to the next stage under Schedule 6 to the Land Registration Act 2002.
2. The public policy that a person should not obtain rights through his own criminal acts is the correct starting point. It is not absolute. It may yield where a competing public interest is stronger and is attributable to Parliament’s intention.
3. Adverse possession is a common law concept adopted by the Limitation Act 1980 and the 2002 Act. The statutory scheme for registered land was comprehensive and carefully balanced. Its purpose included resolving stale claims, preventing uncertainty of title and giving legal effect to long, undisputed possession.
4. Bakewell Land Management Ltd v Brandwood demonstrated that criminality does not necessarily prevent the acquisition of property rights where the landowner could have authorised the use and long user served an established public policy. The same countervailing public interest could apply to adverse possession.
5. R (Smith) v Land Registry was not correct insofar as it treated criminal obstruction, merely because it was criminal, as incapable of founding adverse possession. Its separate conclusion that public rights over a highway could not be extinguished by adverse possession remained applicable. The proper focus was on whether the land or rights in question could be extinguished or transferred, not simply on the fact of criminality.
6. Acts incidental to living in the building formed part of the criminal residence and could not be separately relied upon. The applicant bore the burden of providing sufficient evidence of qualifying possession. The court declined to decide hypothetical acts of possession unrelated to residence.
7. The Convention arguments did not alter the result. The claimant had no accrued right to registration merely because the qualifying period had elapsed, and any interference with Convention rights would in any event have been proportionate.

This was a first-instance judicial review of the Chief Land Registrar’s decision dated 11 February 2013 cancelling the claimant’s application as substantially defective. The decision was quashed and the application remitted to the next stage of the Schedule 6 procedure.