Philip Rainey QC & Marc Glover in JR win

16th May 2014

In the recent case of R (Best) v Land Registry [2014] EWHC 1370 (Admin) the Court considered the interplay between the criminalisation of trespass to residential buildings and the acquisition of title by adverse possession.

Squatting has hitherto been a civil matter, and property owners generally needed to enforce a possession order from a civil court to remove squatters from their property. However, section 144 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 provides that an offence is committed if (a) the person is in a residential building having entered it as a trespasser, (b) the person knows or ought to know that he is a trespasser and (c) the person is living in the building. Section 144 empowers the police to arrest such squatters. It came into force on 1 September 2012 with no transitional provisions. After 1 September 2012 the Land Registry changed its policy on processing applications by squatters for registration of title under Schedule 6 of the Land Registration Act 2002. To apply for “squatter’s title” to registered land a person must have been in adverse possession for the period of ten years ending on the date of the application (Paragraph 1(1) of Schedule 6). The application requires details of those acts which demonstrate adverse possession, such as fencing in land, securing buildings, etc. The Land Registry considered that an evidential rule, ex turpi causa non oritur actio, ‘no right of action arises from a shameful cause’ applied to such acts. The Land Registry rejected applications for registration on the basis that periods where a prohibited act under s.144 (“living in”) was relied upon must be ignored.

The Court in Best resolved the issue in its finding that adverse possession can be based on conduct which discloses a criminal offence. The Court determined that the LRA 2002 did not seek to define “adverse possession”, and therefore imported its common law meaning. Whether the conduct relied upon was criminal under s.144, or some other enactment, was not relevant and the Land Registry was required to consider that conduct as part of the adverse possession in the period of ten years ending on the date of the application.

The decision in Best has created significant press interest and has paved the way for countless Schedule 6 applications which had been previously rejected or not pursued. Permission to appeal has been granted, but in the interim the Land Registry must observe the Court’s finding in progressing both Mr. Best’s, and other squatters’,applications.

For press coverage see: Guardian, Telegraph, ITV, Standard, Mirror, Daily Mail & The Sun.

The decision can be found on Lawtel and Westlaw.



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