The Forgiveness key

Can you assume that criminal trespass will prevent squatters succeeding in a claim for adverse possession?

Residential landlords will remember that as of 1 September 2012 squatting became a criminal trespass if:

  1. the squatter is in a residential building as a trespasser, having entered it as a trespasser;
  2. the squatter knows or ought to know that he or she is a trespasser; and
  3. the squatter is living in a building or intends to live there for any period*.

This legislation has undoubtedly made it easier for residential landlords to evict squatters. Since it is now a criminal offence rather than just a civil wrong, it is much easier for a residential landlord to get assistance from the police when evicting squatters.

You might think that this would make it harder for squatters to acquire adverse possession of a property. To acquire title to a property through adverse possession, the squatter has to be able to show that (amongst other things) they have occupied the premises for 10 years (for registered properties) or 12 years (for unregistered properties). Common sense might suggest that any period during which the squatter is committing criminal trespass would not count towards the 10 or 12 year period. Yet according to a recent Court of Appeal case**, such a common sense approach is wrong.

The case involved an application for adverse possession by Mr Best, who had entered into possession of an empty property in 1997. No one claimed ownership of the property, and nobody disputed Mr Best’s possession of it. After carrying out extensive works to the property, Mr Best began living in it full-time in 2012. He then applied to be registered as the owner of the property, by virtue of adverse possession.

The Land Registry rejected his application because, from 1 September 2012, his occupation of the house constituted criminal trespass. The case ended up in the Court of Appeal, which reversed the Land Registry’s decision, deciding that the period during which Mr Best was occupying the house as a criminal trespasser could count towards the ten-year period required to establish adverse possession.

This is a very surprising decision, particularly as it seems to fly in the face of the legal maxim that a person cannot benefit from a wrong that he or she has committed. However, the Court of Appeal considered that this was an exception to that maxim. This was partly because it thought that the relevant legislation was not intended to impact on the law of adverse possession (because it had not specifically made provision for it). It was also because it thought that if a period of possession constituting criminal trespass can destroy a party’s claim for adverse possession, then this could lead to a flood of retrospective challenges to registrations through adverse possession, based on allegations of criminal trespass during the period of adverse possession.

Whilst this is a disappointing decision for residential landlords, it is an important one. A landlord cannot assume that acts of criminal trespass will prevent squatters from succeeding in a claim for adverse possession. Unless and until this decision is appealed or overruled, it appears that the courts will be willing to forgive squatters their trespasses.

This post was edited by Will Cursham. For more information, email blogs@gateleyuk.com.

*Section 144 Legal Aid, Sentencing and Punishment of Offenders Act 2012

**Best v the Chief Land Registrar and the Secretary of State for Justice [2015] EWCA Civ 17


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This blog is intended only as a synopsis of certain recent developments. If any matter referred to in this blog is sought to be relied upon, further advice should be obtained.