Adverse possession is the term used when a person who is not the legal owner of land can become so by being in possession of that land for a specified period of time. The justification of this principle is to encourage land owners not to abandon their land but to put the same to good use. The law seeks to give recognition to a squatter who is prepared to take responsibility for abandoned land and buildings to avoid it failing into disrepair. In the case of registered land this will involve displacing the existing legal owner and having the land registered in the name of the squatter or, in the event of unregistered land, first registration in the name of the squatter.

Since the Land Registration Act 2002 came into force in October 2003, a squatter is entitled to apply to HM Land Registry for registration as legal owner if he has been in adverse possession for a minimum period of 10 years ending on the date of the application.

The Legal Aid, Sentencing and Punishment of Offenders Act 2012 (‘LASPOA 2012’) criminalised the act of squatting in residential buildings but made no reference to the right of a squatter to claim adverse possession. Some commentators took the view that, based on the principle of ex turpi causa (where no action may be founded on illegal conduct), the new law precluded squatters from claiming adverse possession of residential buildings.

The High Court decision in Best v Chief Land Registrar [2014] EWHC 1370 challenges this view. This case concerned a building which had been left empty and vandalised for some time after the death of the registered proprietor. A squatter with no proprietary interest in the building entered the property and carried out works with his intention of making the property his permanent residence. The squatter proceeded to live there for a period in excess of 10 years after which time a claim for adverse possession was made. The Registrar had taken the view that the squatter could not use his occupation as a basis for a claim for adverse possession as that occupation constituted a criminal offence. However, the High Court reversed the decision of the Registrar and declared the squatter’s application sound under the Land Registration Act 2002.

The view of the Court was that, since LASPOA 2012 was silent on the subject of adverse possession, the implication was that Parliament had assumed that adverse possession would be unaffected by the new law even though it was contrary to the principle of ex turpi causa. The High Court felt that Parliament only intended to provide a remedy to the short-term effect of squatters rather than those in occupation without contest for a long period of time. Whilst on one hand, the view may be that a criminal should not be able to benefit from his or her crime; another is that it is in the public interest for a squatter to take responsibility for abandoned buildings. Whether this decision will be challenged in the Court of Appeal remains to be seen.

The criminalisation of squatting under LASPOA 2012 only applies to residential buildings and squatting in commercial property remains a civil matter only.

For information regarding Edwin Coe and the Property and Construction group please visit https://www.edwincoe.com/services/property.asp.

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