R Best v The Chief Land Registrar The Secretary of State for Justice (Interested Party)

JurisdictionEngland & Wales
JudgeLord Justice Sales,Lord Justice McCombe,Lady Justice Arden
Judgment Date21 January 2015
Neutral Citation[2015] EWCA Civ 17
CourtCourt of Appeal (Civil Division)
Docket NumberCase No: C1/2014/1652
Date21 January 2015

[2015] EWCA Civ 17

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE QUEENS BENCH DIVISION

(ADMINISTRATIVE COURT)

THE HONOURABLE MR JUSTICE OUSELEY

[2014] EWHC 1370 (Admin)

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Lady Justice Arden Lord Justice McCombe and Lord Justice Sales

Case No: C1/2014/1652

Between:
The Queen on the application of Best
Respondent
and
The Chief Land Registrar
Appellant

and

The Secretary of State for Justice
Interested Party

Jonathan Karas QC & Katrina Yates (instructed by The Treasury Solicitor) for the Appellant

Philip Rainey QC & Marc Glover (instructed by Neumans LLP) for the Respondent

The Interested Party did not appear and was not represented

Hearing dates: 19–20 November 2014

Lord Justice Sales

Introduction

1

The issue on this appeal is whether an application for a person to be registered under the Land Registration Act 2002 (" LRA") as the proprietor of a registered estate in land by reason of a period of adverse possession is valid, where part of the relevant period of possession consisted of the occupation of a residential building in circumstances constituting the commission of a criminal offence under section 144 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 ("LASPOA").

2

Section 144 created a criminal offence of squatting (that is to say, trespassing) in certain circumstances in relation to a residential building. It was brought into effect on 1 September 2012. It provides as follows:

"(1) A person commits an offence if—

(a) the person is in a residential building as a trespasser having entered it as a trespasser,

(b) the person knows or ought to know that he or she is a trespasser, and

(c) the person is living in the building or intends to live there for any period.

(2) The offence is not committed by a person holding over after the end of a lease or licence (even if the person leaves and re-enters the building).

(3) For the purposes of this section—

(a) "building" includes any structure or part of a structure (including a temporary or moveable structure), and

(b) a building is "residential" if it is designed or adapted, before the time of entry, for use as a place to live.

(4) For the purposes of this section the fact that a person derives title from a trespasser, or has the permission of a trespasser, does not prevent the person from being a trespasser.

(5) A person convicted of an offence under this section is liable on summary conviction to imprisonment for a term not exceeding 51 weeks or a fine not exceeding level 5 on the standard scale (or both).

(6) In relation to an offence committed before the commencement of section 281(5) of the Criminal Justice Act 2003, the reference in subsection (5) to 51 weeks is to be read as a reference to 6 months.

(7) For the purposes of subsection (1)(a) it is irrelevant whether the person entered the building as a trespasser before or after the commencement of this section".

3

Section 144 was introduced after a consultation exercise conducted by the Government. It criminalises conduct — trespassing on land in certain circumstances — which previously had merely been unlawful in civil law, as a tort. It goes beyond another provision, section 7 of the Criminal Law Act 1977, which criminalises trespassing on land where a residential occupier asks the trespasser to leave.

4

Up to the coming into force of section 144, it was long established that title to land could be acquired by a trespasser by a long period of adverse possession. For unregistered land, that effect was and is still produced by the law of limitation as applied in relation to the tort committed by the trespasser taking possession of the land.

5

The current relevant provision in relation to unregistered land is section 15 of the Limitation Act 1980, which provides for a limitation period of twelve years. Section 17 provides that at the expiration of this period, the title of a person with a claim to the land "shall be extinguished." Schedule 1 to the 1980 Act makes provision regarding the start of the limitation period, which is tied to the date on which adverse possession is taken of the land by a trespasser (paragraph 8(1) of Schedule 1).

6

The LRA transposes a similar rule into the registered land system, with certain modifications. A person who can show that he has had adverse possession of land for the relevant period can apply to be registered as the proprietor of that land, with full legal title. Paragraph 1(1) of Schedule 6 to the LRA provides that a person may apply to be registered as the proprietor of a registered estate in land "if he has been in adverse possession of the estate for the period of ten years ending on the date of the application."

7

The question we have to decide is whether the criminalisation of certain acts of trespassory occupation of land by section 144 of LASPOA means that a trespasser claiming to have established title to registered land in the form of a residential property by virtue of adverse possession including by way of acts of criminal occupation of the property during the relevant period, in contravention of section 144, cannot acquire title to that land. The Appellant ("the Registrar") maintains that this is the true view of the position, since otherwise the trespasser will improperly gain a benefit from his criminal conduct.

8

In a careful and very thorough judgment below ( [2014] EWHC 1370 (Admin)), Ouseley J held that section 144 does not have this effect. He held that conduct of a kind which contravenes section 144 can still be relied upon, as it could have been before section 144 came into force, to establish a period of adverse possession of property so as to acquire title to it. With permission granted by Ouseley J, the Registrar now appeals to this Court.

The Facts

9

The case relates to a house at 35 Church Road, Newbury Park ("the house"). It is a "residential building", within the meaning of section 144 of LASPOA. The freehold title is registered at HM Land Registry. The registered proprietor is Doris May Curtis. Mrs Curtis died some time ago. We were told that her son has recently been appointed as her personal representative.

10

On 27 November 2012, the First Respondent ("Mr Best") made an application to the Registrar to be entered on the Register as the registered proprietor of the house. This was on the basis that he had been in adverse possession of it for the period of ten years ending on the date of the application, as required by paragraph 1 of Schedule 6 to the LRA. (In fact, on the application form, Mr Best ticked the wrong box, referring to paragraph 6 of Schedule 6 rather than paragraph 1; but there was never any doubt about the nature of the claim he was making and the Registrar appreciated that it fell to be considered as a claim under paragraph 1).

11

The application was accompanied by a statutory declaration by Mr Best, in which he explained the basis of his claim to have himself entered on the register as the owner of the house. Mr Best stated that in 1997 he had been working on a nearby property when he noticed the then empty and vandalised house at 35 Church Road. The owner of the property on which he was working told him that the owner, Mrs Curtis, had died and that her son had not been seen since 1996.

12

Mr Best entered the house and did work to it. He repaired the roof in 2000. He has taken other steps to make the house weatherproof and has cleared the garden. As time went on, he replaced ceilings, skirting boards, electric and heating fitments, doors and windows. He plastered and painted walls. He maintained the boundary fences. He did all this with a view to making the house his permanent residence.

13

Mr Best said that he had treated the house as his own since 2001. Although it is not entirely clear what position Mr Best was adopting in relation to the period between 1997 and 2001 (and it does not matter for present purposes), as I read his statutory declaration, his claim to have been in adverse possession of the house, asserting his right of possession against the world, dates from 2001. He had occupied the house without anyone's consent, as a trespasser (although Mr Best did not use that term). There had been no disputes relating to his possession of the house. The period in which he claimed to have been in adverse possession of the house exceeded the ten years required under paragraph 1 of Schedule 6 to the LRA.

14

It was only at the end of January 2012 that Mr Best eventually moved into the house, to live in it as his home. On the Registrar's case, this was an unfortunate thing for him to have done, since it was by virtue of his trespassory occupation of the house to live in it that, as from 1 September 2012, he committed criminal offences under section 144 of LASPOA in such a way as to prevent his possession of the house from qualifying as adverse possession for the purposes of his claim to acquire title under the LRA.

15

The Registrar says that from 1 September 2012, for the last part of the period before Mr Best made his application on 27 November 2012, he had committed offences contrary to section 144 of LASPOA. Since it is relevant to the discussion below, it should be noted here that his possession of the house after 1 September 2012 did not constitute one continuing offence from that time until the date of his application and beyond. Rather, he only committed an offence in each period when he was "in" the house itself (see section 144(1)(a)). He was not in contravention of section 144 during times when he was in possession of the house for the purposes of the civil law, but was not...

To continue reading

Request your trial
11 cases
  • Ilyas Khrapunov v JSC BTA Bank
    • United Kingdom
    • Court of Appeal (Civil Division)
    • 2 de fevereiro de 2017
    ...and such implication may be rejected as being inconsistent with the scheme and object of the statute in issue: see R (Best) v Chief Land Registrar [2015] EWCA Civ 17; [2016] QB 23. In my opinion, there are two reasons why the Bank's argument cannot be 64 First, I consider that the scheme ......
  • Gagen Sharma (as former Liquidator of Mama Milla Ltd) v Top Brands Ltd and Others (First and Second Respondents)
    • United Kingdom
    • Court of Appeal (Civil Division)
    • 10 de novembro de 2015
    ...Shipping Pte [2002] EWCA Civ 1821, [2003] PIQR P17 at [66] to [69], Hounga v Allen [2014] UKSC 47, [2014] 1 WLR 2889 and R (Best) v Chief Land Registrar [2015] EWCA Civ 17, [2015] 2 P&CR 1 as authority for those propositions of law. 29 He summarised the question to be posed in the present ......
  • The Crown Prosecution Service v Aquila Advisory Ltd
    • United Kingdom
    • Supreme Court
    • 3 de novembro de 2021
    ...offence has been or will be committed, as I agree with the observation of Sales LJ giving the judgment of the Court of Appeal in R (Best) v Chief Land Registrar [2015] EWCA Civ 17; [2016] QB 23, para 95 that “ POCA is a separate regime operating according to its own, distinct concepts and......
  • Williams v The Supervisory Authority
    • United Kingdom
    • Privy Council
    • 8 de junho de 2020
    ...not be able to profit from their own unlawful acts: see Patel v Mirza [2016] UKSC 42; [2017] AC 467; R (Best) v Chief Land Registrar [2015] EWCA Civ 17; [2016] QB 23, paras 43–68; and the famous US case, Riggs v Palmer 115 NY 506 (1889) (holding that a beneficiary under a will who murders......
  • Request a trial to view additional results
1 firm's commentaries
  • Criminal Trespass And Adverse Possession
    • United Kingdom
    • Mondaq UK
    • 28 de janeiro de 2015
    ...v. Chief Land Registrar [2015] EWCA Civ 17 A criminal trespasser can acquire title to land via adverse possession. Yes, you read that correctly - a trespasser trespassing on land where it is a criminal offence to do so can still acquire title to that land as a result of the criminal So much......
5 books & journal articles
  • Consumer Redress Legislation: Simplifying or Subverting the Law of Contract
    • United Kingdom
    • The Modern Law Review No. 80-5, September 2017
    • 1 de setembro de 2017
    ...– [174], see also at [129] and adopted by Sales LJ, with whom McCombeLJ agreed, in R (on the application of Best) vChief Land Registrar [2015] EWCA Civ 17 at [70].170 For example Nelson vNelson [1995] HCA 25, (1995) 184 CLR 538; Miller vMiller [2011] HCA9, (2011) 242 CLR 446; Equuscorp n 4 ......
  • No (,) More Bolam Please: Montgomery v Lanarkshire Health Board
    • United Kingdom
    • The Modern Law Review No. 79-3, May 2016
    • 1 de maio de 2016
    ...ibid at [55].59 Apotex n 29 above at [57].60 Bilta n 1 above at [171]-[174].61 R (on the application of Best) vChief Land Registrar [2015] EWCA Civ 17 (Best) at [51] per Sales LJ(with whom McCombe LJ agreed); cf Arden LJ.62 Apotex n 29 above at [13].63 ibid at [19].64 cf J. C. Fisher, ‘The ......
  • Injunctive Relief: But Let's Agree Not To Have It?
    • United Kingdom
    • The Modern Law Review No. 79-3, May 2016
    • 1 de maio de 2016
    ...ibid at [55].59 Apotex n 29 above at [57].60 Bilta n 1 above at [171]-[174].61 R (on the application of Best) vChief Land Registrar [2015] EWCA Civ 17 (Best) at [51] per Sales LJ(with whom McCombe LJ agreed); cf Arden LJ.62 Apotex n 29 above at [13].63 ibid at [19].64 cf J. C. Fisher, ‘The ......
  • Attribution and the Illegality Defence
    • United Kingdom
    • The Modern Law Review No. 79-3, May 2016
    • 1 de maio de 2016
    ...ibid at [55].59 Apotex n 29 above at [57].60 Bilta n 1 above at [171]-[174].61 R (on the application of Best) vChief Land Registrar [2015] EWCA Civ 17 (Best) at [51] per Sales LJ(with whom McCombe LJ agreed); cf Arden LJ.62 Apotex n 29 above at [13].63 ibid at [19].64 cf J. C. Fisher, ‘The ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT