High Court reaches "sensible compromise" on conflict between property possession and squatting regimes, says expert

The High Court found that the Land Registry should not have prevented Keith Best from seeking possession of a dilapidated three-bedroom house he had "treated as his own", renovating it and eventually moving in, since 2001. The Land Registry had blocked Best's application on the grounds that Best's occupation of the property became illegal on 1 September 2012, when the new criminal offence of trespassing in residential property in England and Wales came into force.

Property litigation expert Melissa Thompson of Pinsent Masons, the law firm behind Out-Law.com, said that the court had "come up with a sensible compromise" by ruling that the apparently conflicting adverse possession and criminal trespass regimes did not affect each other. The effect of the court's decision was that a party's liability to claim adverse possession was not prevented by the fact that the occupation giving rise to that claim was actually a criminal offence, she said.

"Trespassing in residential property has been a criminal offence since 1 September 2012," she said. "However, trespassing in commercial property is not such an offence. The court rightly pointed out that a decision preventing adverse claims by trespassers where such trespass was criminal would lead to completely arbitrary results. It would also effectively rule out adverse possession in relation to residential property; something that would be contrary to the intention of parliament and the public policy purposes behind the adverse possession regime – to keep land in circulation and title certain following a long period of possession."

"The purpose of the criminal regime in relation to residential property is to make it easier for home owners to recover possession of their properties by being able to call on the police. It was not designed, as the judge in this case said, 'to throw a spanner into the delicate workings of the [adverse possession regime] with random effects on [its] operation ... all without a backward glance'," she said.

Adverse possession, popularly known as 'squatter's title', allows a person to apply to register title to a piece of property with the Land Registry once they have occupied it for 10 years. In November 2012 Best applied to register title to a house at 35 Church Road, Newbury Park. He had inquired about the ownership of the then empty and vandalised property in 1997, when he had been working on a nearby property; and was told that Doris May Curtis, the registered proprietor, had died.

Best entered the property and carried out improvement works with a view to eventually making it his permanent residence. Notable works included repairs to the roof in 2000, clearing the garden at a cost of £2,000, making the property wind and watertight and replacing electric and heating fitments. He moved in at the end of January 2012. Although his possession of the property had never been disputed, the fact that he was occupying the property without anyone's consent meant that when the law changed that September, he was living there in breach of criminal law.

Rejecting Best's application to register title to the property in December 2012, the Land Registry told him that he could not rely on any period of adverse possession involving a criminal offence to count towards the 10 year possession requirement. Best disagreed, arguing that the relevant law had "no effect on the operation of the carefully structured and balanced provisions of" the adverse possession regime.

In his judgment, Mr Justice Ousley said that the question in this case was not whether courts should "enforce rights created by an unlawful act" generally, but rather "whether the common law concept of adverse possession by trespass excluded criminal trespass from its effects". The adverse possession regime was based on public interest; namely certainty of title in the face of long possession to which there had been no adverse reaction even if no consent, he said.

"There is no evidence that parliament ever actually considered the issue of adverse possession, or that it ever thought that there was a mischief which had to be dealt with either way in relation to the effect of [the criminal trespass laws] on adverse possession," he said. "Parliament made the assumption, which in my view is correct, that adverse possession could be founded effectively on acts of criminal trespass ... Had it thought otherwise, it would surely have given some thought to the consequences and made some provision for them."

The alternative was that parliament would "otherwise have excluded one of the more common types of building for squatters' occupation from the operation of the accepted affects of adverse possession ... [and] on a legislative basis ill-fashioned for the purpose", he said.

"I say that because of the random and arbitrary consequences which would flow from attributing such an intention to parliament ... It is only 'living in' the building which is criminalised. So possession for some use other than 'living in' the property would not be criminal trespass and could found a claim to title by adverse possession ... Trespassory 'living in' a non-residential property ... would also not be criminal," he said.