Best v The Chief Land Registrar The Secretary of State for Justice (Interested Party)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Ouseley |
| Judgment Date | 07 May 2014 |
| Neutral Citation | [2014] EWHC 1370 (Admin) |
| Docket Number | Case No: CO/2847/2013 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 07 May 2014 |
[2014] EWHC 1370 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Ouseley
Case No: CO/2847/2013
and
Mr Philip Rainey QC and Mr Marc Glover (instructed by Neumans LLP) for the Claimant
Mr Jonathan Karas QC and Ms Katrina Yates (instructed by Treasury Solicitor) for the Defendant
Mr David Forsdick (instructed by Treasury Solicitor) for the Interested Party (by written submissions)
Hearing dates: 18 th and 19 th February 2014
This claim for judicial review raises the question of whether the criminalising of trespass by "living in" a residential building, pursuant to section 144(1) of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, LASPOA, has prevented time running for applications for registration of title by adverse possession, so-called squatter's title, to registered land. The Chief Land Registrar decided that it does. Mr Best, the Claimant, who would probably otherwise have been registered as the proprietor of residential property in Newbury Park, challenges that; he contends that s144 of the 2012 Act was never intended to have that effect on the registration of title and should not be construed so that it did.
The Facts
35 Church Road, Newbury Park is a dwelling house. Freehold title is registered at HM Land Registry; the registered proprietor is Doris May Curtis. On 27 November 2012, the Claimant applied to register title to the property on the basis that he had been in adverse possession "for the period of ten years ending on the date of the application", as required by Schedule 6 paragraph 1 to the Land Registration Act 2002, the LRA. Mr Best's accompanying statutory declaration stated that in 1997 he had been working on a nearby property, the owner of which had told him that the last occupier of the then empty and vandalised property at 35 Church Road, Mrs Curtis, had died, and that he had not seen her son since 1996.
Mr Best entered the property, and did work to it, notably repairing the roof in 2000, clearing the garden for £2000, and taking other steps to make it wind and watertight. As time went on, he replaced ceilings and skirting boards, and electric and heating fitments; he plastered and painted walls. He did this intending to make it his permanent residence. He moved in at the end of January 2012. He said that he had treated the house as his own since 2001. There had been no disputes about his possession of the property. But he occupied it without anyone's consent. Mr Best asserts that he is a trespasser in the property; and although Mr Rainey QC for Mr Best was reluctant to admit it, in reality as a trespasser, Mr Best has been living in the building in breach of the criminal law as from 1 September 2012, when s144 LASPOA came into force.
By letter dated 10 December 2012, the Chief Land Registrar, through an officer, told Mr Best that he was going to cancel the application, in effect he was going to refuse it, because he judged that the effect of s144 LASPOA prevented the Claimant relying on any period of adverse possession, which involved a criminal offence, to establish the basis for an application for registration as the proprietor. Accordingly he could not satisfy Schedule 6 of the LRA 2002, which impliedly required that the applicant's possession should not have constituted a criminal offence for any part of the ten year period of adverse possession relied on. The application was therefore substantially defective. The Chief Land Registrar put very considerable weight on the decision of HHJ Pelling QC, sitting as a High Court Judge, in R (Smith) v Land Registry [2009] EWHC 328 (Admin), a case on asserted adverse possession of a highway by obstruction contrary to the Highways Act 1980. Further submissions were considered, but by a final decision dated 11 February 2013, the decision challenged in these proceedings, the application was cancelled.
The grounds of challenge
The Claimant's first and principal contention is that s144 LASPOA has no effect on the operation of the carefully structured and balanced provisions of the 2002 Act, and that the Defendant erred in law in so treating it. This is either because it has no such effect in any circumstances, or because an offence only has that effect where the same act committed by the legal owner would also be a crime, which could not be the position with criminal trespass under s144, or where the owner had no power to consent to the act which would have made it lawful. That, again, could not be the position under s144.
Mr Rainey's second contention is that as s144 only criminalises "living in" residential premises, it does not affect other physical acts of adverse possession being sufficient, such as securing doors and windows, being a sufficient basis for an application for registration. Further, Mr Best had not lost his intention to possess, and could rely on his pre – LASPOA acts to succeed.
Mr Rainey's third contention is that s144 LASPOA should be read down to avoid a breach of Article 8 ECHR or Article 1 of Protocol I to the ECHR. This could involve reading the 2012 Act as not affecting applications to register title, or as not preventing "living in" a house amounting to adverse possession; the 2012 Act could be interpreted so as not to apply to abandoned buildings. Schedule 6 to the 2002 Act, alternatively, could be read as permitting 10 years' adverse possession, accrued before LASPOA came in to force on 1 September 2012, to suffice.
Finally, Mr Rainey contended that, if all else failed, I should declare that s144 was incompatible with ECHR on the grounds that it criminalised residence in what was the Claimant's home, one in respect of which, as at 1 September 2012, he was already entitled to apply for registration as proprietor. The Secretary of State for Justice provided written submissions in response, through Mr Forsdick.
The statutory provisions
By s58 of the 2002 Act, which came into operation on 13 October 2003, the register of title, which it is the Chief Land Registrar's duty to keep, is conclusive as to title subject to the power to rectify mistakes. Subsection (1) provides:
"(1) If, on the entry of a person in the register as the proprietor of a legal estate, the legal estate would not otherwise be vested in him, it shall be deemed to be vested in him as a result of the registration".
Thus the register and not possession is the root of title to registered land.
Adverse possession is dealt with in s96 by the disapplication of limitation periods:
"(1) No period of limitation under section 15 of the Limitation Act 1980 (c. 58) (time limits in relation to recovery of land) shall run against any person, other than a chargee, in relation to an estate in land or rent charge the title to which is registered.
(3) Accordingly, section 17 of that Act (extinction of title on expiry of time limit) does not operate to extinguish the title of any person where, by virtue of this section, a period of limitation does not run against him".
The Limitation Act time limits only operate now in relation to unregistered land.
By s97, it is Schedule 6, and not s17 of the Limitation Act which makes provision for title by adverse possession, and it does so by registering an adverse possessor. Schedule 6, paragraph 1 enables a person to apply for registration as proprietor of a registered estate "if he has been in adverse possession of the estate for the period of ten years ending on the date of the application". This provision is central to the arguments here. "Adverse possession" is defined in paragraph 11, so far as material, as possession in the circumstances in which time would be running under s15 of the Limitation Act 1980 had it not been disapplied by s96 of the 2002 Act.
A person may also apply if, in the six months before the application, he had been entitled to make the application but had ceased to be in adverse possession because he had been evicted by the registered proprietor rather than evicted pursuant to a court order, but not if proceedings for possession were under way against him, or if judgment had been given against him in an action for possession of the land in the last two years. Those latter provisions do not apply, but are relevant to the Claimant's contention about the care and comprehensiveness with which the LRA 2002 dealt with title by adverse possession of registered land.
S98 is also material to the general operation of the Act, though not to the specific circumstances here. It provides, among other circumstances, a defence to an action for possession where, immediately preceding the bringing of the possession action, the defendant was entitled to make an application under paragraph 1 of Schedule 6, and for judgments for possession to cease to be enforceable after two years, if the applicant is by then entitled to make an application under Schedule 6 to be registered as the proprietor.
Once an application is received, the Registrar has to give notice of it under paragraph 2 of Schedule 6 to named categories of person, including the registered proprietor of the estate, or of any charge, or to someone registered under the rules as entitled to be notified. The provision enabling others to be specified by rules has not been utilised. There is no obligation directly to give notice to personal representatives as such. A person given notice may require that the application be dealt with under paragraph 5....
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