Best, R (On the Application Of) v The Secretary of State for Justice (Rev 1)

Criminal occupation of a residential building contrary to section 144 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 does not prevent that occupation from contributing to adverse possession under Schedule 6 to the Land Registration Act 2002. Parliament did not intend section 144 to alter the settled adverse-possession regime.

Whether illegality affects a statutory private-law right depends on the relevant legislative context and policies. Section 144 supplies its own criminal sanction and addresses the practical removal and deterrence of residential squatters. It does not displace the distinct policies of certainty, marketability and productive use of land underlying adverse possession.

Mr Best applied to be registered as proprietor of a registered residential property under paragraph 1 of Schedule 6 to the Land Registration Act 2002, relying on more than ten years’ adverse possession. During the final months he lived in the house as a trespasser, conduct falling within section 144 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012.

The Chief Land Registrar cancelled the application as substantially defective, reasoning that criminal conduct could not count as adverse possession. Ouseley J quashed that decision in [2014] EWHC 1370 (Admin). The Registrar appealed. The central issue was whether section 144 impliedly qualified the statutory adverse-possession regime.

1. Appeal dismissed. The criminalisation of residential squatting by section 144 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 did not prevent conduct occurring during the offence from qualifying as adverse possession under Schedule 6 to the Land Registration Act 2002. Ouseley J’s order quashing the Registrar’s decision therefore stood.

2. Sales LJ, with whom McCombe LJ agreed, held that illegality does not operate through one blanket rule applying identically throughout private law. The court must identify the rule appropriate to the particular statutory context and weigh the policy supporting legal-system integrity against any countervailing statutory policy. The adverse-possession provisions promote certainty, marketability and the productive use of abandoned or neglected land.

3. Section 144 was enacted to deter residential squatting and assist owners to recover occupied homes. Its language and legislative background disclosed no intention to alter adverse possession. Such an alteration would have been profoundly disruptive and arbitrary. It would distinguish residential buildings from other land, make intermittent physical presence decisive, and undermine certainty in registered and unregistered titles. Offending under section 144 was therefore collateral to the statutory inquiry into adverse possession.

4. The reasoning in Bakewell Management Ltd v Brandwood [2004] UKHL 14 supported that conclusion. An owner can prevent liability under section 144 by consenting to occupation. This indicated that the offence expressed no overriding public policy requiring displacement of the established private-law balance between owner and adverse possessor. McCombe LJ rejected any material distinction for this purpose between acquiring rights by prescription and acquiring title through limitation or the analogous registered-land regime.

5. Part 5 of the Proceeds of Crime Act 2002 constituted a separate state-recovery regime with its own concepts, procedures and safeguards. It did not justify importing an illegality bar into the Land Registration Act 2002.

6. Arden LJ concurred through conventional purposive interpretation. Schedule 6 and section 144 operate independently. The adverse-possession scheme gives the paper owner specified rights to object, while registration regularises the position prospectively without removing the criminal sanction. The statutory subject matter therefore excluded ex turpi causa to the extent of conduct criminalised by section 144.

1. Court of Appeal (Civil Division): In [2015] EWCA Civ 17, dismissed the Chief Land Registrar’s appeal and upheld the order quashing the cancellation of the application.
2. High Court, Administrative Court: Ouseley J held in [2014] EWHC 1370 (Admin) that section 144 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 did not prevent criminal occupation from counting towards adverse possession, and quashed the Registrar’s decision.