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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Best, R (On the Application Of) v The Secretary of State for Justice (Rev 1) [2015] EWCA Civ 17 (21 January 2015) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2015/17.html Cite as: [2015] EWCA Civ 17, [2015] HLR 17, [2015] 3 WLR 1505, [2015] CP Rep 18, [2015] 4 All ER 495, [2016] QB 23 |
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ON APPEAL FROM THE QUEENS BENCH DIVISION
(ADMINISTRATIVE COURT)
THE HONOURABLE MR JUSTICE OUSELEY
Strand, London, WC2A 2LL |
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B e f o r e :
LORD JUSTICE McCOMBE
and
LORD JUSTICE SALES
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The Queen on the application of Best |
Respondent |
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- and - |
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The Chief Land Registrar |
Appellant |
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- and - |
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The Secretary of State for Justice |
Interested Party |
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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
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Crown Copyright ©
Lord Justice Sales:
Introduction
"(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".
The Facts
The Land Registration Act 2002
"What is the justification for adverse possession?
10.5 It is of course, remarkable that the law is prepared to legitimise such "possession of wrong" which, at least in some cases, is tantamount to sanctioning a theft of land. So sweeping a doctrine requires strong justification. Of the reasons that are often given for it, four are particularly cogent, and of these the fourth is the most compelling.
10.6 First, because adverse possession is an aspect of the law of limitation, it is of course customary to account for it, in part at least, in terms of the policy of limitation statutes generally, namely to protect defendants from stale claims and to encourage plaintiffs not to sleep on their rights. However, adverse possession does not merely bar claims. Its effect is positive: "a squatter does in the end get a title by his possession and the indirect operation of the [Limitation] Act and he can convey a fee simple". This can only be justified by factors over and above those which explain the law on limitation. In this context it should be noted that a landowner may be barred even where he or she is quite blameless. As we have explained above, adverse possession can take place without it being readily detectable. In any event, this particular justification has much greater force in relation to unregistered land than it does for land with registered title. Unregistered title ultimately depends upon possession. It therefore behoves a landowner to be vigilant to protect that possession and not to sleep on his or her rights. We explain below why the position is different where title is registered.
10.7 Secondly, if land ownership and the reality of possession are completely out of kilter, the land in question is rendered unmarketable if there is no mechanism by which the squatter can acquire title. This situation can easily happen, as for example where—
- the true owner has disappeared and the squatter has assumed rights of ownership for a substantial period; or
- there have been dealings with registered land "off the register", so that the register no longer reflects the "true" ownership of the land.
10.8 Thirdly, in cases of mistake, the law of adverse possession can prevent hardship. For example, a squatter may have innocently entered land, mistakenly believing that he or she owned it, perhaps due to uncertainty as to the boundaries. He or she may have incurred expenditure under the mistaken belief of ownership. Although in some cases the squatter may have a claim based upon principles of proprietary estoppel, because the true owner knew of the acquiesced in the squatter's mistake, that will not always be true.
10.9 Fourthly, title to unregistered land is relative and depends ultimately upon possession. The person best entitled to land is the person with the best right to possession of it. The fact that adverse possession can extinguish earlier rights to possess facilitates and cheapens the investigation of title to unregistered land. The length of title that a vendor is required to deduce is and always has been closely linked to the limitation period. Indeed, the principal reason for having limitation statutes in relation to real property appears to have been to facilitate conveyancing.
10.10 This fourth reason is undoubtedly the strongest justification for adverse possession. However, it can normally have no application to registered land. Where title is registered, adverse possession facilitates deduction of title only in relation to those matters on which the register is not conclusive. These are explained below. …
10.19 We therefore provisionally recommend that—
(1) the law of adverse possession as it applies to registered land should be recast to reflect the principles of title registration; and
(2) its application should be restricted to those cases where it is essential to ensure the marketability of land or to prevent unfairness."
"(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.
"(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 estates in land (or where the adverse possessor was in possession of registered land prior to the coming into operation of the LRA: see the transitional provisions in paragraph 18 of Schedule 12 to the LRA).
Section 144 of LASPOA
"Question 8: How should the term 'occupation' be defined? Should it cover those who occupy a building for a short period (e.g. a couple of hours)?
…
The Land Registry recognised that a new offence of squatting covering all buildings may have an impact on the law of adverse possession. They thought that one effect of a new offence of squatting in empty buildings would be to prevent squatters acquiring ownership through their long-term possession. They queried whether the offence should only extend to "buildings, or parts of buildings, where it ought to be apparent that they are still occupied by the owner, and not those buildings, or parts of buildings that appear to have been abandoned."
"Ministerial colleagues and I are very concerned about the harm that squatters can cause. I have been contacted time and time again by MPs and constituents about the appalling impact that squatting can have on their homes, businesses and local communities. This is not media hype. It can and does really happen; and when it does it can be highly stressful for the owner or lawful occupier of the property concerned.
It is not only the cost and length of time it takes to evict squatters that angers property owners; it is also the cost of the cleaning and repair bill which follows eviction. While the property owner might literally be left picking up the pieces, the squatters have gone on their way, possibly to squat in someone else's property.
I accept that the law already provides a degree of protection for both commercial and residential property owners as offences such as criminal damage and burglary may apply in certain circumstances. There is also an offence under section 7 of the Criminal Law Act 1977 that applies where a trespasser fails to leave residential premises on being required to do so by or on behalf of a "displaced residential occupier" or a "protected intending occupier". This offence means that people who have effectively been made homeless as a result of occupation of their properties by squatters can already call the police to report an offence.
But there are many residential property owners, including landlords, local authorities and second home owners who cannot be classified as 'displaced residential occupiers' or 'protected intending occupiers'. There are also many commercial property owners, whose businesses may be seriously affected by squatters, who report that they generally have to rely on civil procedures to get squatters to leave.
Given the level of public concern about the issue, the Government has decided as a first step to introduce a new offence of squatting in residential buildings. The offence would be committed where a person was in the building as a trespasser having entered as such, knew or ought to have known he or she was a trespasser, and was living or intending to live in the building.
Stopping short of criminalising squatting in non-residential buildings represents a balanced compromise. Squatters who occupy genuinely abandoned or dilapidated non-residential buildings will not be committing the new offence, although their actions will rightly continue to be treated as a civil wrong and they can still be prosecuted for such offences such as criminal damage or burglary. Neither will students who occupy academic buildings or workers who stage sit-ins to protest against an employer be caught by the offence. But the offence will provide greater protection in circumstances where the harm caused is the greatest - squatting in someone's home. This behaviour is unacceptable and must be stopped.
I recognise that homelessness charities may be concerned about the impact such an offence may have on vulnerable, homeless people who squat in rundown residential properties. One of the reasons they remain in this state is that owners cannot get in to renovate them because squatters are present. And consultation responses indicated that squats can be unhygienic and dangerous places to live and are no place for genuinely vulnerable people. We will ensure that reforms in this area are handled sensitively in conjunction with the wider government initiatives to tackle the root cause of homelessness, to provide affordable homes and to bring more empty homes back to use."
"Having considered the consultation responses, the Government remains concerned about the impact squatting can have on residential and non-residential property owners. It believes that law-abiding property owners and occupiers should be able to enjoy their entitlements to their property without interference from those who have absolutely no right to be there.
The responses to the consultation document included a number of responses from owners of residential property whose houses have been occupied, thus rendering them impossible to live in. Victims included private homeowners who could not move into properties that had been occupied, local authorities who have been unable to refurbish social houses to make them available for priority categories, and landlords who had been unable to let their property as a result of squatting.
Consultation responses also showed that businesses can be weakened as a result of squatting in commercial premises: the squatting disrupts normal business activity and causes damage that often costs thousands of pounds to put right.
Whilst there are civil remedies available to property owners and occupiers under Part 55 of the Civil Procedure Rules, the Government is persuaded that, given the level of harm that squatting can cause, it is right that the criminal law should intervene to offer a greater degree of protection. It is not convinced by arguments put forward during the consultation process that the law is the right place and should not be changed. Nor is it persuaded by arguments advanced primarily by supporters of the SQUASH campaign that squatting can have a beneficial effect on local communities. As a first step, the Government intends to criminalise squatting in residential properties. This will deal with what it considers to be the greatest mischief and the greatest distress to victims, that of being unable to use one's own home.
The new offence will be committed where a person is in a residential building as a trespasser having entered it as a trespasser, knows or ought to know that he or she is a trespasser and is living in the building or intends to live there for any period. In developing this proposal, the Government was mindful of the views of respondents. The following sections describe how specific matters raised by respondents have been considered in the development of the provisions.
Why not just criminalise squatters who fail to leave when required to do by the owner or lawful occupier?
Squatters who fail to leave residential premises when required to do so by a displaced residential occupier or a protected intending occupier are already committing a criminal offence under section 7 of the Criminal Law Act 1977. The Government considered whether to simply extend this offence to other types of owner or occupier of residential property, but agreed with responses to the consultation which argued that an offence criminalising the act of squatting in itself (rather than a failure to leave on request) would provide a more powerful deterrent to would-be squatters ..."
Discussion
"42. The defence of illegality rests on the foundation of public policy. "The principle of public policy is this …" said Lord Mansfield by way of preface to his classic exposition of the defence in Holman v Johnson (1775) 1 Cowp 341, 343. "Rules which rest on the foundation of public policy, not being rules which belong to the fixed or customary law, are capable, on proper occasion, of expansion or modification": Maxim Nordenfelt Guns and Ammunition Co v Nordenfelt [1893] 1 Ch 630, 661 (Bowen LJ). So it is necessary, first, to ask "What is the aspect of public policy which founds the defence?" and, second, to ask "But is there another aspect of public policy to which application of the defence would run counter?"
43. An answer to the first question is provided in the decision of the Canadian Supreme Court in Hall v Hebert [1993] 2 SCR 159. After they had been drinking heavily together, Mr Hebert, who owned a car, allowed Mr Hall to drive it, including initially to give it a rolling start down a road on one side of which there was a steep slope. The car careered down the slope and Mr Hall was seriously injured. The Supreme Court held that the illegality of his driving did not bar his claim against Mr Hebert but that he was contributorily negligent as to 50%. At the outset of her judgment on behalf of the majority, McLachlin J, at p 169, announced her conclusion about the basis of the power to bar recovery in tort on the ground of illegality, which later she substantiated in convincing terms by reference to authority. Her conclusion was as follows:
'The basis of this power, as I see it, lies in [the] duty of the courts to preserve the integrity of the legal system, and is exercisable only where this concern is in issue. This concern is in issue where a damage[s] award in a civil suit would, in effect, allow a person to profit from illegal or wrongful conduct, or would permit an evasion or rebate of a penalty prescribed by the criminal law. The idea common to these instances is that the law refuses to give by its right hand what it takes away by its left hand.'
44. Concern to preserve the integrity of the legal system is a helpful rationale of the aspect of policy which founds the defence even if the instance given by McLachlin J of where that concern is in issue may best be taken as an example of it rather than as the only conceivable instance of it. I therefore pose and answer the following questions: (a) Did the tribunal's award of compensation to Miss Hounga allow her to profit from her wrongful conduct in entering into the contract? No, it was an award of compensation for injury to feelings consequent on her dismissal, in particular the abusive nature of it. (b) Did the award permit evasion of a penalty prescribed by the criminal law? No, Miss Hounga has not been prosecuted for her entry into the contract and, even had a penalty been thus imposed on her, it would not represent evasion of it. (c) Did the award compromise the integrity of the legal system by appearing to encourage those in the situation of Miss Hounga to enter into illegal contracts of employment? No, the idea is fanciful. (d) Conversely, would application of the defence of illegality so as to defeat the award compromise the integrity of the legal system by appearing to encourage those in the situation of Mrs Allen to enter into illegal contracts of employment? Yes, possibly: it might engender a belief that they could even discriminate against such employees with impunity."
"The ex turpi causa principle is concerned with claims founded on acts which are contrary to the public law of the state and engage the public interest. The paradigm case is … a criminal act …"
"Any legal system must have rules of prescription which prevent the disturbance of long-established de facto enjoyment. But the principles upon which they achieve this result may be very different. In systems based on Roman law, prescription is regarded as one of the methods by which ownership can be acquired. … English law, on the other hand, has never had a consistent theory of prescription. It did not treat long enjoyment as being a method of acquiring title. Instead, it approached the question from the other end by treating the lapse of time as either barring the remedy of the former owner or giving rise to a presumption that he had done some act which conferred a lawful title upon the person in de facto possession or enjoyment. …"
"46. My Lords, in my opinion, the decision in Hanning's case [Hanning v Top Deck Travel Group Ltd (1993) 68 P & CR 14, CA] and the subsequent justifications of that decision are wrong and ought not to be followed. I accept that, at the end of the day, the issue is one of public policy. It is accepted, however, that a prescriptive right, or a right under the lost modern grant fiction, can be obtained by long use that throughout was illegal in the sense of being tortious. That is how prescription operates. Public policy does not prevent conduct illegal in that sense from leading to the acquisition of property rights. The decision in Hanning's case can only be justified on the footing that conduct illegal in a criminal sense is, for public policy purposes, different in kind from conduct illegal in a tortious sense. Why should that necessarily be so? Why, in particular, should it be so where the conduct in question is use of land that is not a criminal use of land against which the public law sets its face in all cases? It is criminal only because it is a user of land for which the landowner has given no "lawful authority". In that respect, the use of land made criminal by section 193(4) of the 1925 Act, or by section 34(1) of the 1988 Act, has much more in common with use of land that is illegal because it is tortious than with use of land that is illegal because it is criminal.
47. In my opinion, if an easement over land can be lawfully granted by the landowner the easement can be acquired either by prescription under section 2 of the 1832 Act or by the fiction of lost modern grant whether the use relied on is illegal in the criminal sense or merely in the tortious sense. I can see no valid reason of public policy to bar that acquisition. …"
Conclusion
Lord Justice McCombe:
Lady Justice Arden:
i) The provisions for registration of adverse possession appear in entirely different legislation (the LRA) from section 144 (LASPOA). There is no indication that section 144 should affect the operation of the adverse possession provisions. This is not of course conclusive but is of some weight, given that section 144 also deals with the occupation of land. Parliament has clearly left this difficult question to the courts to decide.
ii) It is neither essential nor sufficient for the applicant to rely on a breach of section 144 to make out his case of adverse possession, and thus to deprive the applicant of title by adverse possession may also deprive him of the benefit of conduct which has not been criminalised.
An applicant for registration of adverse possession has to show (a) factual possession and (b) an intention to possess the property to the exclusion of all other persons, including the owner with the paper title (see generally, Megarry & Wade, The Law of Real Property (8th ed, 2012, edited by Harpum, Bridge and Dixon at 35-017 to 35-019).
To show (a), he has to show that he has taken sufficient control of the land. The sufficiency of the control will vary according to the type of land. He has to exclude the true owner on a continuing basis. Living in a house without more may not be enough. The adverse possessor may have to take some step such as changing the locks or putting up fences. Living in the property to the exclusion of the true owner is something that happens in consequence of exclusion, as is exemplified by the facts of this case.
The commission of the offence under section 144 thus contributes to the case for establishing adverse possession but is not of itself enough. Since the act which entitles the applicant to factual possession is the antecedent act of taking exclusive possession with the relevant intention, and since this antecedent act is outside section 144 of LASPOA, then, if the applicant fails to obtain registration, he is deprived not merely of the benefit of having entered and lived in the property in breach of section 144 but also from acts which have not been criminalised, namely having excluded the owner at the first stage (which did not breach section 144) and from the owner failing to object at the second stage.
Again this is only a factor, but there is no reason why Parliament should wish to deprive the applicant of those latter benefits.
iii) The Registrar's approach is inconsistent with the statutory purposes of adverse possession and also section 144. This is of greater weight.
Section 144 has to be interpreted against the context that the law confers on persons who exclude true owners from possession rights to registration of property by adverse possession if the person entitled to the property has done nothing to make good his claim to possession for a very long period. If the Registrar rejects an application for registration of adverse possession because of the commission of the offence under section 144, and the applicant continues to live in the property, without any objection from the true owner, there can never be registration of the title in the applicant's name.
If the Registrar is right, a significant change in the law will have happened by accident, or at least without any express signal. There will have been a paradigm shift in the law in favour of inactive absentee owners.
One of the objectives of section 144 is to deter squatters and bring to an end unlawful squatting. But if section 144 prevents registration of adverse possession, it may well in those cases have the contrary effect since it removes a way of regularising the legal position.
iv) The Registrar's approach deprives the law of adverse possession of the important quality of coherence by introducing strange distinctions and bizarre results which have no connection with Parliament's purposes in enacting the law of adverse possession. I attach weight also to this.
If the Registrar is right and the act of living in the property prevents registration of title by adverse possession, the owner of a residential property who does nothing is protected from losing his house by adverse possession if it was occupied by a squatter but the owner of valuable farmland who does nothing would lose his property. That distinction would be totally at odds with purposes of the adverse possession provisions of the LRA.
Moreover, on the Registrar's approach, there may be adverse possession of a house by taking control of it without living in it but not if the adverse possessor decides to live in it. Such a distinction has no rationale and promotes none of the objectives of the law of adverse possession. Moreover (though he may have to make a separate application) the adverse possessor may succeed in obtaining adverse possession of the grounds or garden but not the house itself. If that is correct it leads to the possibility that there could be adverse possession of parts of the house in which the squatter was not actually living – he might only have taken possession of the ground floor, but let out the upper floors.
These results result in a piecemeal law of adverse possession bordering on the absurd. There is nothing to suggest that Parliament intended that section 144 of LASPOA should have this, or any, impact on the long-standing doctrine of adverse possession.
v) In my judgment, the Registrar's act of registering the adverse possession does not condone the illegality or assist it. Its primary effect is to regularise the legal position for the future. Again this is an important factor.
The Registrar is right to say that the commission of any act which Parliament has made a criminal offence is a serious matter which necessarily entails condemnation by the Court and by the Registrar. However, the sanction for breach of section 144 is laid down in that section. The commission of an offence is not affected by the registration of adverse possession. Parliament's express purpose in criminalising the activity is observed. The applicant cannot, therefore, be said to benefit from his criminal conduct in the sense of having avoided the penalty.
vi) Parliament has safeguarded the interests of the owner of the paper title by providing that the title to property by adverse possession cannot be registered unless he has had an opportunity to file an objection under section 73(1) of the LRA or to serve a counter-notice under paragraph 3 of Schedule 6 to the LRA. (In the present case, the personal representative has taken that opportunity. He has lodged an objection which is to be referred to the First Tier Tribunal.) The paper title owner's right to show that there has been no sufficient adverse possession is therefore fully protected. This has four important consequences which must carry considerable weight in the interpretation exercise. First, the statutory scheme signals that these provisions were to be the totality of the paper title owner's rights and that Parliament did not intend the paper title owner to have the further right of having the application for registration of the title prevented altogether by virtue of ex turpi causa. On conventional principles of statutory interpretation, these express provisions of the LRA read in their context exclude further rights by implication. Second, it is consistent with the policy objectives of registration of title by adverse possession that he should have to take this step and therefore it is a step reasonably required by the LRA. Third, if he does not choose to exercise these rights, the clear inference is that his private interest is exhausted and the public interest in ensuring the marketability of the land is to take over. Fourth, the applicant does not profit from committing a criminal offence unless the paper title owner fails to object.