High Court battle to acquire home by adverse possession – criminal, homeowner or both

In an important test case last month a man obtained a High Court judgement granting him permission to continue his occupation of the house he had technically been squatting in since 1997.

Builder squatter

Keith Best began occupying the three-bedroom semi-detached in Ilford when he heard that the owner had died and that her son had not been seen for a year.  The property was vandalised and derelict and Mr Best fixed the roof and cleared the garden.  He then plastered the walls, replaced ceilings and replaced electric and heating fitments before taking up residence of the property in 2012.  At this point, Mr Best had been in possession of the property for over ten years and under the Land Registration Act (‘LRA’) 2002, he was entitled to make an application to the Land Registry to be registered as the legal owner.

Under the old regime, which applies to unregistered land and registered land where the period of possession relied upon ends before 1 October 2003, Mr Best would have had to have been in possession of the property for twelve years before making an application.  However, the period of possession he was seeking to rely upon ended after 1 October 2003, and consequently his case came under the LRA 2002.

Rules relating to possession under the Land Registration Act 2002

In order to make a successful application under the LRA 2002, the squatter must prove adverse possession which means establishing that the squatter had uninterrupted factual possession and the intention to possess.  A squatter will be able to show factual possession if it can be established that the property was abandoned or that the squatter dispossessed the registered owner.  It is very difficult to prove that land has been abandoned, therefore a squatter will usually try to prove dispossession.  Dispossession occurs where the squatter has dispossessed the paper owner (the registered owner or the owner on the deeds) by going into ordinary possession of the land for the requisite period without the consent of the owner.

Furthermore, to prove that dispossession of the registered owner has occurred; the squatter must have a degree of exclusive physical control over the land.  Whether this represents factual possession will depend on the circumstances and the nature of the land, for example the way in which the squatter exerts control over the land will depend on whether the land consists of house, a field or even a riverbed.  Exerting a degree of physical control over the land therefore may include changing the locks on a house, putting up a fence or a gate in a field or using the land in such a way that the paper owner is prevented from using it.

To establish the second element of adverse possession, the intention to possess, there must have been an intention to possess in the squatter’s own name, on its own behalf and to the exclusion of all others.   This will again depend on the nature of the land and the squatter must have dealt with the land accordingly.

Once enough information has been gathered to prove adverse possession, an application is then made to the Land Registry requesting that the squatter be registered as the legal owner of the property.  The current registered owner and any charge holders are then notified of the application.  If an application remains unopposed then the squatter will be registered as the new owner.  

Recent test case – in light of the criminalisation of squatting

Mr Best’s application to be registered as the legal owner of the house, which he submitted in November 2012, was opposed by the Chief Land Registrar.  The Chief Land Registrar refused the application because, as reported by LitigationSpy in September 2012, residential squatting is now a criminal offence under section 144(1) of the Legal Aid, Sentencing and Punishment of Offenders Act LASPOA 2012 (see our original post here).  The change of law meant that as well as committing the civil offence of trespass, Mr Best was also committing a criminal offence by occupying the property.

However, when the case came to be heard in the High Court, Mr Justice Ouseley ruled in Mr Best’s favour.  The judge held that section 144 (1) of LASPOA had not been intended to interfere with the old law of adverse possession.  Previously, under the civil law of trespass, homeowners could expect little or tardy police assistance to deal with intruders.  Therefore, the legislation had been brought in to protect homeowners who had left their properties for a short period of time, only to come back to find that squatters had entered and fortified them from the inside, to prevent the lawful owners accessing their properties.  Even though a portion of the adverse possession was reliant on criminal trespass, it did not preclude Mr Best making a successful claim for adverse possession.  Adverse possession has many public and economic benefits by preventing the disuse of land that is unused and unclaimed.

Nevertheless, though the High Court ruled in Mr Best’s favour, his family and friends should be slow to send him the customary congratulations on acquiring a new home, since the judge also stayed proceedings to allow the Chief Registrar to appeal to the Court of Appeal.

 Furthermore, even if the house is finally registered in Mr Best’s name, he could still be prosecuted for his period of occupation between the commencement of section 144 (1) of LASPOA and his application to the Land Registry.

As a result, it may be some time before Mr Best is safe as houses.