Best, R (On the Application Of) v The Secretary of State for Justice (Rev 1) [2015] EWCA Civ 17 (21 January 2015)

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England and Wales Court of Appeal (Civil Division) Decisions

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: http://www.bailii.org/ew/cases/EWCA/Civ/2015/17.html
Cite as: [2015] CP Rep 18, [2015] 4 All ER 495, [2015] 3 WLR 1505, [2015] EWCA Civ 17, [2015] HLR 17, [2016] QB 23

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		Neutral Citation Number: [2015] EWCA Civ 17
		Case No: C1/2014/1652

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

21/01/2015

B e f o r e :

LADY JUSTICE ARDEN
LORD JUSTICE McCOMBE
and
LORD JUSTICE SALES
____________________

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
____________________

HTML VERSION OF JUDGMENT
____________________

Lord Justice Sales:

Introduction

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").

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".

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.

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.

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).

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."

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.

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

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.

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).

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.

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.

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.

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.

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 physically in the building. Whenever he left the house, for example to go to work or out to the shops, his adverse possession continued, but he did not commit an offence under section 144 at such times.

The Registrar considered Mr Best's application, but decided that it should be rejected, by reason of the contravention of section 144 by Mr Best. In a letter dated 10 December 2012, the Registrar stated, "It is not possible to rely on an act which is itself a criminal offence … as evidence of adverse possession", and referred Mr Best to the judgment of HHJ Pelling QC in R (Smith) v Land Registry [2009] EWHC 328 (Admin), which I discuss below. There was correspondence about this between the Registrar and the solicitors acting for Mr Best, but the Registrar maintained his position in a final decision letter dated 11 February 2013, and by letter dated 19 February 2013 informed Mr Best that his application had been cancelled.

The Registrar's position was not unreasonable, particularly in view of the authority cited by him. However, the question we have to consider is whether the Registrar's position is correct in law.

The Land Registration Act 2002

The LRA effected a major overhaul of the system of registration for legal title to land. The LRA was enacted following a joint Law Commission and HM Land Registry review and consultation paper, "Land Registration for the Twenty-First Century" (Law Com 254). In the course of the review and consultation, careful consideration was given to the question whether under the proposed new system it should remain possible for title to land to be acquired by adverse possession, as is the case in respect of unregistered land.

In the joint consultation paper, the Law Commission and HM Land Registry said this (footnote references omitted):

"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."

The reference to adverse possession securing the marketability of land covers a range of considerations, such as encouraging investment in the development of land for better use of the land (rather than directly for the purposes of selling it). The public interest in the marketability of land promoted by the law of adverse possession can be said to be the public interest in securing its economic utility more widely, rather than allowing it to be sterilised through abandonment or non-use by an owner who has no interest in it or who may have disappeared: see paragraph 2.72 of the Law Commission report on the Land Registration Bill (Law Com No. 271, of July 2001) ("Land is a precious resource and should be kept in use and in commerce").

Having considered the responses to the consultation, the Law Commission issued its recommendations for reform of the land registration system in its report, Law Com No. 271. The Law Commission confirmed its provisional recommendation to retain the possibility of acquisition of title by adverse possession, with suitable adaptation to take account of the new regime for registered land. This recommendation was followed in the LRA.

In its report, the Law Commission noted that adverse possession runs counter to the "fundamental concept of indefeasibility of title that is a feature of registered title" (para. 14.3). Registration itself therefore protected the registered proprietor of land against adverse possession. The aim of its proposals for legislation was to "reflect the logic of title registration and to strike a more appropriate balance between landowner and squatter" (para. 14.4). The need for a change in that balance in relation to registered land reflected judicial concern that it favoured the adverse possessor too much. The Law Commission commented on its summary of its proposals that: "It will be apparent from this summary that one of the essential features of the scheme is that it must produce a decisive result. Either the squatter is evicted or otherwise ceases to be in adverse possession, or he or she is registered as proprietor of the land" (para. 14.6).

Section 97 of and Schedule 6 to the LRA were adopted in the same form as proposed by the Law Commission.

Neither the consultation paper nor the Law Commission report commented on what the position would be if acts of adverse possession relied upon were in contravention of the criminal law.

In the court below, Ouseley J provided a helpful summary of the effect of the LRA as relevant to these proceedings, the substance of which I gratefully incorporate into this judgment, as follows.

By section 58 of the LRA, which came into operation on 13 October 2003, the register of title, which it is the 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 section 96 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 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).

By section 97, it is Schedule 6, and not section 17 of the Limitation Act 1980, which makes provision for title by adverse possession, and it does so by allowing for registration of an adverse possessor as proprietor of the land in question. Paragraph 1 of Schedule 6 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 section 15 of the Limitation Act 1980 had it not been disapplied by section 96 of the LRA.

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 Mr Best's submissions about the care and comprehensiveness with which the LRA dealt with title by adverse possession of registered land.

Section 98 is also material to the general operation of the LRA, 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. If there is no such response to the notice - and that issue did not arise here – then by paragraph 4: "the applicant is entitled to be entered in the register as the new proprietor of the estate." As Ouseley J remarked, "It is as simple as that." By paragraph 9, registration pursuant to a Schedule 6 application extinguishes the unregistered possessory title which the applicant had at the time of application. Paragraph 10 provides for the circumstances in which a squatter may be registered as the proprietor free of a charge.

If, however, there is an objection set out in a counter-notice from a person entitled to be notified, the paragraph 5 procedure has to be followed, and one of the three conditions it specifies has to be met for the applicant to succeed: (1) that equitable estoppel makes it unconscionable for the registered proprietor to seek to dispossess the applicant and he ought to be registered as the proprietor instead in the circumstances; (2) that the applicant is entitled for some other reason, such as a void unregistered disposition, to be registered as the proprietor; (3) that the land in question is adjacent to other land of the applicant, no exact boundary has been determined, and the applicant has reasonably believed it to be his for ten years. Where there is a counter-notice and no condition is satisfied, the adverse possessor cannot be registered, and title remains unchanged on the register. Again, these conditions do not apply here, but are relevant to Mr Best's contentions about the nature of the statutory provision for the registration of title to registered land in adverse possession cases. But there is no entitlement to be registered as proprietor simply because of ten years' adverse possession.

By section 73(7) of the LRA, where an objection is made under section 73(1) (in addition to or instead of serving a counter-notice), is not rejected as groundless by the Registrar, and is not resolved by negotiation, it must be referred to the Adjudicator. Disputes over issues within their remit now go to the First-Tier Tribunal. But decisions of the Registrar cancelling, i.e. rejecting, an application as substantially defective are only judicially reviewable, as in this case.

By paragraph 6 of Schedule 6, a person whose application is rejected may make a further application if he remains in adverse possession for the two years following the rejection. The application procedure, the evidence required, and the questions which can be asked of the applicant, are regulated by the Land Registration Rules 2003 (SI 2003 No. 1417).

The present case depends on the interaction of the LRA and section 144 of LASPOA, and in particular on the balance of the public policies of which each of them is the expression. I therefore now turn to consider the object of section 144.

Section 144 of LASPOA

Section 144 was introduced as the result of public concern regarding the difficulty for landowners, in particular the owners of residential property, in securing the assistance of the police to remove squatters who are occupying their property.

In July 2011, the Government issued a consultation paper on its proposal to criminalise squatting: Options for Dealing with Squatting (Consultation Paper CP12/2011). The consultation paper did not suggest that a desire to change the law of adverse possession, either in relation to registered or unregistered land, played any part in the proposal. In its response, however, the Land Registry drew attention to the possibility of a knock-on effect upon the law of adverse possession. No other consultee mentioned this.

In the Government's Response to Consultation, published on 26 October 2011, the Land Registry's response was summarised as follows:

"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."

The Government's Response to Consultation explained that the Government proposed to introduce a new criminal offence in relation to squatting, but limited to residential property. In the foreword, the relevant Minister (Crispin Blunt, Parliamentary Under-Secretary of State for Justice) said this:

"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."

In the body of the Response to Consultation, the Government explained its proposal to introduce what became section 144 of LASPOA as follows:

"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 ..."

The Government did not respond to or comment on the issue of impact of the new provision upon adverse possession, raised by the Land Registry.

It is worth emphasising at this juncture that the proposed new provision was to be introduced principally to assist owners of residential buildings in a practical way, in particular in gaining re-entry to houses occupied by squatters, rather than because of a perceived wider public interest to govern the position. This is of significance for the discussion below. Also, there was no indication by the Government in either of its papers that there was any intention that the new provision should affect the operation of the carefully worked out provisions of the LRA in respect of acquisition of title by adverse possession.

Discussion

In many contexts in the civil law, rights between persons are informed by the idea that a person should not benefit as a result of unlawful action taken by himself: see e.g. Alghussein Establishment v Eton College [1988] 1 WLR 587. There is also a narrower and more specific principle, that a person should not be able to benefit from a crime they have committed or from conduct with features similar to criminal conduct. This narrower principle underlies the law of illegality, summarised in the old maxim ex turpi causa non oritur actio (a claim cannot be founded on a wrong committed by the claimant): see Les Laboratoires Servier v Apotex Inc. [2014] UKSC 55; [2014] 3 WLR 1257.

As Mr Rainey QC, for Mr Best, pointed out, the wider idea that a person should not benefit from his own wrong has not prevented the law of adverse possession from operating. Adverse possession is, of course, founded on the tort of trespass to land. The public interest in having land put to good use and in having clear rules to govern acquisition of title to land which has been abandoned has been taken to override the general concern that a person should not benefit from their unlawful actions. Since 1833, that balance of public interest has been expressed in statutory form by the law of limitation in relation to unregistered land, which is now set out in sections 15 and 17 of the Limitation Act 1980. Since 1925, the same balance of public interest has been expressed by similar provision allowing for title to registered land to be acquired by adverse possession, as now set out in the relevant provisions of the LRA.

The question which arises on this appeal is whether the priority given to the public interest in active use and marketability of land, outweighing the general concern that a person should not be able to benefit from their own wrong, should continue to be recognised even where aspects of a person's adverse possession of land involve the commission of a criminal offence, and in particular an offence or series of offences under section 144 of LASPOA.

Mr Karas QC for the Registrar makes the forceful submission that the intervention of the criminal law in this area makes a critical difference to the balance of competing public interests: the public interest in ensuring that a person does not benefit from a crime committed by him is especially strong. It has also received statutory reinforcement in the form of the Proceeds of Crime Act 2002 ("POCA"), under which a court can make an order to deprive a person of property which they have acquired as a result of crime. Therefore, Mr Karas submits, and as intimated by the Land Registry in its response to the Government's consultation before the enactment of section 144 of LASPOA, the enactment of section 144 has had a major impact on the law of adverse possession. Where, in the course of a period of adverse possession sought to be relied on in relation to a residential property, the acts of adverse possession include acts which would constitute an offence or offences under section 144 with respect to the property (i.e. knowingly being in the property as a trespasser for the purposes of living in it), such acts cannot qualify as adverse possession allowing title to the property to be acquired by the trespasser-offender. The relevant public policy now expressed in section 144 outweighs the public policy given expression in sections 15 and 17 of the Limitation Act 1980 and in paragraph 1 of Schedule 6 to the LRA. In relation to the LRA, the practical effect is that a person who commits an offence contrary to section 144 in the ten years before seeking to have himself registered as the proprietor of the land in question on the basis of his adverse possession of that land cannot show that he has the requisite ten years of adverse possession of the property as required by paragraph 1 of Schedule 6, and so will not be entitled to be entered on the register as proprietor of the land.

By virtue of rule 16(3) of the Land Registration Rules 2003, if an application to be registered as a proprietor of land appears to the Registrar "to be substantially defective" he may reject it on delivery or cancel it at any time thereafter. The Registrar says that under this rule he has rejected Mr Best's application for registration, since it is "substantially defective", because it revealed that Mr Best was relying on conduct in contravention of section 144 as part of his claim to acquire title by adverse possession.

Furthermore, Mr Karas submits that there is authority which supports this analysis, in the form of R (Smith) v The Land Registry [2009] EWHC 328 (Admin). That case concerned an application by an adverse possessor of land which formed part of the public highway to be registered as the proprietor of that land. The Land Registry refused the application on grounds including that adverse title could not be claimed over a highway. A claim was brought for judicial review. HHJ Pelling QC (sitting as a Judge of the High Court) rejected the claim. He held that establishing adverse possession of a highway would inevitably involve the criminal offence of obstruction, contrary to section 137 of the Highways Act 1980, and that it was a use of the land which even the relevant highway authority which owned the highway had no authority to authorise, so that the reasoning in Bakewell Management Ltd v Brandwood [2004] UKHL 14; [2004] 2 AC 519 (which I discuss below) indicated that "it is a legal impossibility for the claimant to claim adverse possession to part of the highway by reference to the illegal obstruction of it for a period of 12 years prior to the making of the claim contrary to the terms of primary legislation which makes such obstruction criminally and not merely tortiously unlawful" (para. [14]). At paras. [15]-[16], the Judge rejected an argument for the claimant that the criminal nature of the activity said to constitute adverse possession was irrelevant to the question whether adverse possession was established, distinguishing certain cases where a background of some criminal activity of a different type had been found not to prevent adverse possession from being made out. As I read his judgment, this was essentially because the criminal activity in those cases was collateral to the acts of adverse possession being relied upon.

The case went on appeal: [2010] EWCA Civ 200; [2010] QB 413. The Court of Appeal dismissed the appeal on the narrow ground that adverse possession could not be established over a public highway, since it could not be shown that the public entitled to a right of passage over the highway had been dispossessed of those rights by the activity of the claimant. The Court reached this conclusion without needing to refer to the argument based on Bakewell Management or the criminal nature of the activity relied upon by the claimant.

In the present case, Ouseley J at first instance rejected Mr Karas's submissions for the Registrar. In my judgment, he was right to do so. I do not consider that the enactment of section 144 and the commission of an offence under it has any material effect on the operation of the law of adverse possession.

In my view, the best guidance on the relevant analytical framework for present purposes is given in the speech of Lord Wilson JSC (speaking for the majority) in Hounga v Allen [2014] UKSC 47; [2014] 1 WLR 2889. In that case, an employee who had been brought from Nigeria by her employer so as to enter the United Kingdom in breach of immigration control, to take up employment here illegally, was then dismissed by the employer. The employee sought to bring a claim for unlawful race discrimination in relation to her dismissal. Her claim succeeded in the employment tribunal, but the Court of Appeal set its order aside, holding that the illegality of the contract of employment formed a material part of the claimant's complaint and that to uphold it would be to condone the illegality. The Supreme Court allowed the employee's appeal.

In doing so, the Supreme Court confirmed the position arrived at in Tinsley v Milligan [1994] 1 AC 340: the law of illegality does not operate to confer a broad discretion on a court to take any illegal actions on the part of a claimant into account when deciding the extent to which such illegality has an impact upon the relief sought by the claimant. Rather, the task for the court is to identify in the specific context in question a particular rule which reflects in an appropriate way the relevant underlying policy in that area: see Hounga, paras. [42] et seq.; also Gray v Thames Trains Ltd [2009] UKHL 33; [2009] AC 1339, paras. [30]-[31] per Lord Hoffmann; Stone & Rolls Ltd v Moore Stephens [2009] UKHL 39; [2009] 1 AC 1391, paras. [20]-[25] per Lord Phillips of Worth Matravers; and now Les Laboratoires Servier v Apotex Inc., supra, paras. [13]-[22] per Lord Sumption JSC. Although in each case a rule is to be identified, rather than just taking a discretionary approach of a kind disapproved in Tinsley v Milligan, Hounga and Les Laboratoires Servier, there is not one single rule with blanket effect across all areas of the law. Instead, there are a number of rules which may be identified, each tailored to the particular context in which the illegality principle is said to apply: see Gray v Thames Trains Ltd (para. [30]: the ex turpi causa policy is based "on a group of reasons, which vary in different situations"; and para. [32]: as between rules applicable in different contexts, "the questions of fairness and policy are different and the content of the rule is different. One cannot simply extrapolate rules applicable to a different kind of situation") and Les Laboratoires Servier, paras. [19] and [22].

The issue in Hounga was, "In what circumstances should the defence of illegality defeat a complaint by an employee that an employer has discriminated against him by dismissing him contrary to section 4(2)(c) of the Race Relations Act 1976?" (para. [1]). In a significant respect, therefore, the question was similar to that before us, depending as it did on the extent to which the Supreme Court considered that the rights conferred by the 1976 Act should be treated as impliedly qualified so as to be subject to a defence of illegality. At paras. [42]-[44] of his judgment in Hounga, Lord Wilson said this:

"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."

Lord Wilson's assessment was that the considerations of public policy militating in favour of applying the ex turpi causa defence to defeat the claim were very slight: para. [45]. He then went on to consider the countervailing public policy considerations which were in play, in favour of allowing the claimant to rely on the Race Relations Act and to bring her claim. He concluded that these outweighed the public policy considerations in favour of allowing an illegality defence to the claim and that therefore the claim should proceed: paras. [46]-[52]. Lord Hughes JSC (with whom Lord Carnwath JSC agreed) agreed "that the claim of statutory tort in the present case was set in the context of the claimant's unlawful immigration, but that there was not a sufficiently close connection between the illegality and the tort to bar her claim": para. [59].

Lewisham LBC v Malcolm [2007] EWCA Civ 763; [2008] Ch 129 in the Court of Appeal, and [2008] UKHL 43; [2008] 1 AC 1399 in the House of Lords, provides another example of a case in which the balance of public policy considerations was found to be capable of limiting the statutory and common law rights of a landowner to gain possession of its property, if it could be shown that the landowner had committed an act of unlawful disability discrimination contrary to the Disability Discrimination Act 1995 in giving notice to terminate a tenancy in respect of the property: see paras. [61]-[65] in the judgment of Arden LJ in the Court of Appeal; and, in the House of Lords, paras. [19] (Lord Bingham), [101] and [104] (Baroness Hale) and [160] (Lord Neuberger). The House of Lords held that the argument that the landowner was disqualified from seeking possession of its property could not be sustained on the particular facts of the case: there had been no breach of the 1995 Act.

In some contexts, the illegality principle applies simply by operation of the common law. Les Laboratoires Servier is a case concerned with an argument that the illegality principle, as an aspect of the common law, operated to prevent recovery on a cross-undertaking in damages given in respect of an interim injunction obtained in proceedings in England. The injunction was obtained by the owner and licensee in relation to a European patent to prevent the defendants from selling certain drugs in the UK which had been brought in from Canada, which were alleged to infringe the claimants' European patent. In due course, at trial, the European patent was found to be invalid and the defendants sought to bring a claim for compensation under the cross-undertaking in damages. Meanwhile, in proceedings in Canada, a company related to the claimants succeeded in a claim of infringement of a Canadian patent in respect of the manufacture and supply of the drugs which were put on sale in the UK. The claimants then sought to rely on the defence of illegality as completely excluding the defendants' claim for damages under the cross-undertaking. The Supreme Court held that the illegality involved in that case did not prevent the defendants from recovering damages under the cross-undertaking.

Lord Sumption JSC (with whom Lord Neuberger of Abbotsbury PSC and Lord Clarke of Stone-cum-Ebony JSC agreed) gave the leading judgment, in which he made important general observations about the way in which a defence of illegality operates. Lord Sumption emphasised that the defence is based on public policy: see paras. [13], [23], [25], [28] and [30]. At para. [23] he also observed, "It is because the public has its own interest in conduct giving rise to the illegality defence that the judge may be bound to take the point of his own motion …".

At para. [25], Lord Sumption said:

"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 …"

However, he also pointed out at para. [29] that there may be exceptional cases where even criminal or quasi-criminal acts will not constitute turpitude for the purposes of the illegality defence. That possibility is also inherent in the formulation in the first sentence of para. [25], involving as it does the use of the word "and": it is not always a sufficient condition for the defence to come into play that a criminal act has been performed in a way relevant to the acquisition of private law rights. Lord Sumption also pointed out (para. [18]) that the speeches in Tinsley v Milligan [1994] 1 AC 340 included statements intended to exclude the illegality defence where the consequences of an illegal act "are merely collateral to the claim".

Mr Karas emphasised in his submissions the statement by Lord Sumption in para. [25] of his judgment that a criminal act is "the paradigm case" for application of the illegality defence. However, in my view Mr Karas was not able to explain why the qualification made by Lord Sumption to that statement should not be treated as relevant in the present case.

The approach of the Supreme Court in Les Laboratoires Servier is compatible with its approach in Hounga, and in particular with the approach set out by Lord Wilson at para. [42] of his judgment in that case. For example, it seems to me that to say that criminal illegality is collateral to some civil claim is a way of saying that the public policy associated with the particular crime in issue is not centrally engaged and is outweighed by other general public policies inherent in the relevant civil law to be applied.

That was also, in substance, the approach adopted in Hipperson v Newbury District Electoral Registration Officer [1985] 1 QB 1060. In that case, the Court of Appeal held that women who resided in an electoral district by reason of being illegally encamped on Greenham Common, in contravention of the criminal law, as part of a protest against nuclear weapons being held at a military base, were entitled under the Representation of the People Act 1983 to be entered on the electoral register for the local district by the registration officer by virtue of that residence: see 1075C-D ("We do not consider that Parliament can have intended [sc. in the 1983 Act] to cast upon an electoral registration officer the duty of deciding which residential breaches of the criminal law should disqualify an aspiring voter and which should not. Accordingly we reject the submission that the franchise is affected by the fact that the qualifying residence is illegal or, a fortiori, unlawful").

The context in which we have to consider the operation of the illegality principle is materially different from that in Les Laboratoires Servier, because rights under statutory provisions are in issue. In the present case, Mr Karas says that the operation of a statutory provision (specifically, paragraph 1 of Schedule 6 to the LRA) is affected by the illegality principle. Since statute can override the common law, this argument depends upon paragraph 1 of Schedule 6 to the LRA being "read down" (i.e. having words read into it by implication) so as to provide - as it were, in parenthesis - that a period of adverse possession in reliance on behaviour which constitutes a criminal offence will not qualify to be treated as adverse possession for the purposes of the LRA. Mr Karas says that the illegality principle is so long-standing and well recognised that it is not difficult to infer that Parliament intended that paragraph 1 of Schedule 6 to the LRA should be read as subject to this implied qualification to allow for its operation.

Mr Rainey, on the other hand, makes a wider and a narrower submission. On his wider submission, he says that no qualification at all can be read into paragraph 1 of Schedule 6 to the LRA by reference to criminal conduct of the person claiming title (i.e. claiming to be registered as proprietor). By the LRA, and following the approach in relation to unregistered land in the Limitation Act, it is clear that Parliament did not intend a wide formulation of an illegality bar to apply (since it is in the very nature of adverse possession that it will involve illegal action by the person claiming title by virtue of it, in the form of tortious trespass to land), and there is no good reason to read any qualification into the relevant provisions by reference to a narrower formulation of an illegality bar focusing on criminal conduct. Furthermore, he says that there is a substantial body of authority which indicates that criminally unlawful activity by a person claiming to be in adverse possession of property does not prevent his actions, including the criminal conduct, from counting as adverse possession for the purposes of acquiring title to land. Mr Rainey referred to Lord Advocate v Lord Lovat (1880) 5 App Cs 273, HL(Sc) (a Scottish case on the law of prescription applicable in Scotland, in which the illegality of the means used to assert rights in respect of use of river, by using nets with an illegally small mesh to catch salmon, was held not to affect the claim of the person using those nets to have acquired thereby rights by prescription); Red House Farms (Thorndon) v Catchpole [1977] 2 EGLR 125, CA; Wilson v Martin's Executors [1993] 1 EGLR 178, CA; Mayor and Burgesses of the London Borough of Lambeth v Blackburn [2001] EWCA Civ 912; (2001) 82 P & CR 39 (in which the acts held to be valid acts of adverse possession included the criminal act of breaking the property-owner's lock: see paras. [26] and [43]-[46]); and Fowles v Heathrow Airport Ltd [2008] EWHC 219 (Ch). Mr Rainey also says that no case has been identified since the original statutory predecessor of sections 15 and 17 of the Limitation Act 1980 was introduced in 1833 which has said that criminal unlawfulness of the activity relied upon as constituting adverse possession has prevented that activity from qualifying as valid adverse possession; he says that this argument from silence is of particular weight in view of the obligation of a court itself to identify and take of its own motion any illegality defence which might be available: see Les Laboratoires Servier, para. [23]. Mr Karas disputes this last point, referring to Collis v Amphlett (1917) 62 The Solicitors' Journal and Weekly Reporter 37; R (Smith) v Land Registry at first instance; and a decision of the Adjudicator to HM Land Registry in Walton v Hedleyhope Parish Council, Ref/2011/0399 and 0400, dated 25 June 2012; but I am bound to say that on any view such authority as he refers to is sparse indeed on such a significant issue.

On his narrower submission, Mr Rainey accepts that some implied qualification can be read into paragraph 1 of Schedule 6 to the LRA by reference to the illegality principle, reflecting the public policy balancing test spelled out by Lord Wilson at para. [42] in his judgment in Hounga. But Mr Rainey says that on application of the public policy balancing test in the present context, the relevant balance of the competing public policies inherent in the LRA, on the one side, and in section 144 of LASPOA, on the other, indicates that activity in breach of the criminal law in the form of section 144 does not fall within the relevant implied qualification in the LRA. Accordingly, such criminally unlawful activity may occur, yet not prevent the actions of the person claiming to acquire title by virtue of his adverse possession (including by way of such criminal activity) from qualifying as relevant adverse possession for the purposes of the LRA. Mr Rainey says that similar reasoning would also apply in relation to sections 15 and 17 of the Limitation Act 1980 in respect of acquisition of title to unregistered land.

In my judgment, there is force in Mr Rainey's wider submission. It could be said that to leave open any scope for the illegality defence to operate in this area would undermine to an inappropriate degree the public policy benefits associated with the adverse possession regimes for both registered and unregistered land, and the legal certainty that those regimes are intended to promote in relation to dealings with land. I observe that the public policy benefits of completely excluding the operation of the illegality principle are especially strong in relation to unregistered land, for which there is no definitive register of title to give assurance to those entering transactions relating to land and no supervising regulator to police title and the operation of any illegality argument. Moreover, since the same concept of adverse possession is employed in Schedule 6 to the LRA (see para. 11 of Schedule 6), it can be argued that these points of distinction should make no difference so far as the operation of the illegality principle in relation to registered land is concerned, so that it might be said that even in respect of registered land it is the position in relation to unregistered land which provides the correct context for application of the public policy balancing test.

However, it is on Mr Rainey's narrower submission that I would prefer to decide this appeal. It is not necessary to go further in this case. Although the public policy concerns underlying acquisition of title by adverse possession are very strong, especially in relation to unregistered land, I have some doubt whether Parliament can be taken to have intended the illegality principle to be wholly excluded from having any potential impact whatever in relation to the operation of paragraph 1 of Schedule 6 to the LRA. The difficulty with Mr Rainey's wider submission is that it covers such an extensive and protean category of conduct that it might be said to be difficult to say, in advance, of every conceivable form of criminally unlawful action bearing upon acquisition of title to registered land by adverse possession that Parliament intended it should have no impact at all upon the operation of the LRA. For example, I would wish to reserve my opinion regarding a case in which a trespasser in occupation of a residential building bribed a police officer not to expel him in reliance on section 144 of LASPOA, thus procuring or participating in an offence of corruption in a public office to gain the benefit of being registered as the proprietor with the title to the land; or a case in which a trespasser murdered the true owner in order to prevent him from claiming possession of the property.

Adoption of the approach in line with Mr Rainey's narrower submission appears to me to be in accordance with an appropriate general principle which it is reasonable to infer Parliament intended should apply by implication in the operation of the LRA. This approach allows for a properly modulated and focused weighing of the competing public policies which might come into play, whether considering legislation passed prior to the LRA or enacted after it.

Following this approach, I accept Mr Rainey's submission that the relevant balance of public policy considerations shows clearly that the fact that a relevant period of adverse possession for the purposes of the LRA included times during which the possessor's actions constituted a criminal offence under section 144 of LASPOA does not prevent his conduct throughout from qualifying as relevant adverse possession for the purposes of the LRA.

For these purposes, what is required, following the guidance given by Lord Wilson in Hounga at para. [42], is an amalgamated approach, balancing the public policy considerations which underlie and find expression in the provisions of the LRA governing acquisition of title by adverse possession against the public policy considerations which underlie and find expression in section 144 of LASPOA. Addressing that focused issue, I consider that it is clear that in enacting section 144 of LASPOA, Parliament did not intend that it should have any impact on the law of adverse possession set out in the LRA. The mischief which section 144 was intended to address and the objective it was intended to achieve had nothing to do with the operation of the law of adverse possession. (I would add that, in my opinion, each of the authorities relied upon by Mr Rainey for his wide submission is capable of being explained by application of the same approach).

The object of section 144 appears both from its own terms and from the Government's stated reasons for seeking its enactment by Parliament, as set out in the Response to Consultation. Although that response was not in formal terms a White Paper, in substance it fulfilled the same role of explaining the background to a legislative proposal introduced by the Government. In my view, therefore, the consultation paper has similar status to a White Paper as a legitimate aid to interpretation of section 144, and in particular as a legitimate source for guidance as to the policy objective which was sought to be achieved by section 144 (cf Black Clawson International Ltd v Papierwerke Waldhof-Aschaffenburg AG [1975] AC 591). The stated objective of section 144 was to provide deterrence and practical, on the ground assistance for home-owners in removing squatters from their property. Disruption of the law of adverse possession was not mentioned as an intended effect of the provision, nor was it suggested that it was being introduced to try to re-balance the rights of property owners as against those of adverse possessors with respect to the entitlement to be treated as title-holder in relation to property.

Although the Response to Consultation set out, in the summaries of various responses, the point made by the Land Registry regarding possible effects on the law of adverse possession, that was not something which the Government said anything about in its own explanation why it proposed to introduce the legislation.

The terms of section 144 make no reference to the adverse possession regimes for either registered land or unregistered land. Had there been any policy intention to affect either of those regimes by passing section 144, this would have been a very surprising omission. Acceptance of the Registrar's arguments would have a profoundly disruptive effect in relation to what has been the long established effect of the law of adverse possession for the purposes of acquiring title for both registered and unregistered land. It is not plausible to suppose that Parliament would have been silent about the impact of a provision like section 144 on the delicate and comprehensive balance of interests set out in the Limitation Act 1980 and in Schedule 6 to the LRA, had it truly intended that section 144 should have any impact at all on those regimes.

Although one could identify potentially significant differences in the relevant balance of public policy factors as between unregistered land and registered land – since the operation of the law of limitation and adverse possession is even more important in relation to unregistered land as the basis to show current title for the purposes of selling land – both counsel, for their own separate reasons, argued that the Registrar's argument would have a similar impact upon both registered and unregistered land. This would be very disruptive. The Registrar's argument, if correct, would mean that for registered land no-one could be sure that the title entered on the Register as a result of adverse possession was in fact a true title; someone (e.g. the former owner) might come forward at any later date and raise a case that part of the period of adverse possession was in fact affected by violation of section 144, so that the register ought to be rectified by reason of a mistake of the Registrar in accepting the application for registration of that title. The effect of the argument would also include disruption to the operation of the defence of adverse possession to a claim for possession of land as set out in section 98 of the LRA, opening up what on the face of it is a relatively simple factual inquiry whether a requisite period of adverse possession has been established, into an investigation into the quality of the adverse possession and whether the acts included any violations of section 144. The effect of the argument would be even more disruptive in relation to title to unregistered land, where title based on adverse possession critically depends upon the operation of sections 15 and 17 of the Limitation Act 1980. Section 17, in particular, was intended to provide assurance of good title in any case where the chain of title might conceivably include a relevant period of adverse possession: see Megarry and Wade, The Law of Real Property, 8^th ed. (2012) by C. Harpum, S. Bridge and M. Dixon, para. 35-001. But that assurance would be undermined if what appeared to be a period of valid adverse possession could be attacked on the basis of allegations of breach of section 144 on facts potentially going back many years.

In the circumstances, I consider that the true inference is that in enacting section 144 Parliament did not intend to produce any collateral effect upon the settled law of adverse possession in respect of either registered or unregistered land.

That inference is further reinforced by the arbitrary effects that the Registrar's argument (if correct) would have upon the law of adverse possession. It would involve a capricious distinction between the rules of adverse possession affecting residential buildings and the rules affecting other forms of real property, with no good justification for such distinction. It would involve potentially wholly disproportionate and arbitrary impact for even very limited periods of breach of section 144 (perhaps lasting only a matter of days) upon periods of adverse possession lasting many years, or even decades. In fact, the violations of section 144 would be likely to be even more fleeting and intermittent than this, since the offence would not be committed each time the person in possession of the house left it to go to work, to go shopping or for social purposes. This arbitrariness would be especially great in transitional cases, where a person had been in valid adverse possession of land for years or decades before the coming into effect of section 144, but then might lose his underlying (albeit not yet asserted) acquired right to have his title to the land recognised by reason of, say, a day's occupation of the property in contravention of section 144.

Arbitrary distinctions would also have to be drawn depending on how the person in adverse possession of a residential building manifested his possession of the premises, and a yet further arbitrary distinction would arise between different parts of the premises in question. As emphasised above, section 144 criminalises only very specific actions (the act of being in a building as a knowing trespasser for the purposes of living there). It does not criminalise the act of taking adverse possession of a residential building; indeed, it does not refer to the concept of adverse possession at all. A person can be in possession of a property, and hence build up a period of adverse possession asserting his rights against the world, without living or intending to live in the property or even being in the property. Erection and maintenance of a fence around a property might be sufficient to constitute taking possession of it. The facts of the present case demonstrate the point: it was only because Mr Best moved into the house as his home in January 2012, at the end of a long period of adverse possession without living in the house, that he fell foul of the impact of section 144. There seems to be no justification for saying that section 144 should prevent his adverse possession from having effect under the LRA, whereas if he had been careful not to move into the house until after he had established ten years adverse possession by continued use of the other means he had been using previously he would have been entitled to be registered as proprietor before moving in. Indeed, to say that section 144 had that effect in his case would mean that the well-advised adverse possessor would not move into a house to use it to live in until after he had built up ten years of adverse possession by other means and had himself registered as proprietor under the LRA; but this would directly conflict with a primary objective of the law of adverse possession, that land should be put to use and not sterilised.

This discussion of how adverse possession is established leads to a further point of arbitrariness (if the Registrar's argument is correct) regarding the particular area of land in relation to which adverse possession is established. Section 144 only criminalises the occupation, under certain conditions, of a residential building. If a house has a garden or a driveway, a squatter could set up a tent in the garden or on the driveway and squat there without committing a criminal offence. A person could take the entire property (both house and grounds) into his possession by, say, erecting a fence around the garden and driveway, and then, if in doubt about the effect of section 144, apply to the Registrar to be entered on the register as proprietor of the land constituting the grounds as well as proprietor of the separate plot of land constituting the house itself. There is no good reason for a difference in the effect of adverse possession in the two cases. In fact, the arbitrariness of the effect of section 144 in this regard (if the Registrar's argument is correct) is yet another illustration of the fundamental point that section 144 uses concepts remote from those which govern the operation of the law of adverse possession, and was not intended to have any effect on that law.

Before the Judge, Mr Karas sought to meet this aspect of dissonance between the effect of section 144 (on his argument) and the operation of the LRA by saying that on the particular facts of Mr Best's case he had made one application in respect of the entire property (house and curtilage), and that acts done in relation to the curtilage should be treated as incidental to ("part and parcel of") any "living in" the building. The Judge accepted this, should he prove to be wrong in his main conclusion that section 144 did not have any effect on the operation of the law of adverse possession: see paras. [88]-[92] of the judgment. I should register my doubt about whether the Judge was right about this, since the LRA and associated Rules allow for the Registrar to raise requisitions about any application; on the information submitted by Mr Best it seems it appeared that his application related both to a house and its curtilage; and it is not straightforward to introduce concepts of incidentality into an exercise supposed to be focused on the objective task of drawing lines on a map to mark out ownership of property. However, the main point to be made arising out of the dissonance between section 144 and the LRA which this discussion highlights is that it reinforces the inference that Parliament did not intend that section 144 should have any impact on the law of adverse possession, and hence reinforces the conclusion that the Judge was correct in his ruling on the main issue in the case.

In my judgment, the various arbitrary effects which section 144 would have in relation to the law of adverse possession if the Registrar's argument were correct are further strong indicators that in enacting section 144 without making any attempt to address them, Parliament did not intend that section 144 or the policy considerations which underlie it should have any bearing upon the operation of the law of adverse possession. Parliament is not lightly to be taken to have legislated with the intention of producing such capricious and arbitrary effects upon a carefully crafted and comprehensive statutory regime such as that contained in the LRA. Another way of putting this, having regard to the very limited circumstances in which an offence is committed under section 144 and the non-correspondence of those circumstances with the concept of adverse possession, would be to say that any offending under section 144 is collateral to the matters on which reliance may be placed to establish the adverse possession required under the LRA.

The correctness of the Judge's conclusion on this main issue in the case is also powerfully supported by the decision of the House of Lords in Bakewell Management Ltd v Brandwood, supra. Before turning to that authority, it is necessary to mention the earlier decision of the House of Lords in R v Oxfordshire County Council, ex p. Sunningwell Parish Council [2000] 1 AC 335, to which reference was made in Bakewell Management, since this assists in understanding the ambit of the reasoning in the later case and its significance for the present proceedings.

The Sunningwell case concerned an application for registration of land as a village green on the basis of long use of the land by villagers "as of right". It was held that the villagers had established their entitlement to use the land as a village green through such long use by them. Lord Hoffmann (with whom the other members of the Appellate Committee agreed) made general observations, at [2000] 1 AC 335, 349D-G, about the need in any legal system for rules to prevent the disturbance of long-established de facto enjoyment, as follows:

"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. …"

It should be noted that Lord Hoffmann gave a common underlying rationale for rules regarding acquisition of title by prescription and those regarding acquisition of title through a limitation bar on the remedy of the former owner to recover the land. Rules of prescription and rules of limitation in relation to remedies with respect to land create legal certainty where the underlying facts may be obscure and protect the reasonable expectations of persons entering into transactions in relation to land.

The Bakewell Management case concerned an area of common land with a long history of use by neighbouring landowners to drive their cars across it to get to the public highway. A new owner of the land sought to exclude them, and they claimed that they had acquired an easement on the basis of prescription under section 2 of the Prescription Act 1832 or the presumption of a lost modern grant of such an easement by virtue of more than 20 years of uninterrupted user. Under applicable legislation, the use of the land by the neighbouring landowners without the permission of its owner constituted a criminal offence. However, the House of Lords held that while a lost modern grant could not be presumed where an actual grant by the owner of the land would have been unlawful, there was no requirement of public policy that prevented the acquisition of an easement by long and uninterrupted user in breach of the statutory prohibition where it would have been lawful for the owner of the land to make such a grant and where such grant would have removed the criminality of the use of the land. The fact that the owner of the land could, if asked, have consented to its use and thereby prevented such use from being criminal did not prevent the actions of the neighbouring landowners in using the land from having in fact been criminal, since the owner was not asked and did not give his consent before they used the land in that way (a feature of the case emphasised by Lord Walker of Gestingthorpe at [59]). Since the owner of the land would have had the power to give his consent for the use in question, and would thereby have prevented criminal liability from arising, the House of Lords could not identify any public interest that would prevent the public policy underlying the doctrine of presumed lost modern grant from operating, just because that had not happened in fact: see paras. [7]-[9] per Lord Hope of Craighead (referring at para. [9] to Lord Hoffmann's observations in the Sunningwell case); paras. [27]-[47] per Lord Scott of Foscote (referring to the Sunningwell case at para. [27]); and paras. [59]-[60] per Lord Walker. This position was contrasted with situations in which a relevant legal prohibition would have prevented the land-owner himself from doing something on the land or giving consent for it to be done, since this could be taken to preclude the presumption or fiction that there had been a valid grant of an easement in the past: see the discussion by Lord Scott at paras. [31]-[39] of various authorities, including Glamorgan County Council v Carter [1963] 1 WLR 1. I think it could equally be said that the legal prohibitions in those cases were indicative of an overriding public interest being engaged such that private rights should not be allowed to be founded upon actions in breach of those prohibitions.

All members of the Appellate Committee agreed with the reasons given by Lord Scott. In his conclusions, Lord Scott said this, at paras. [46]-[47]:

"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. …"

Two points may be made about this reasoning. First, it amounts in substance to the sort of balancing of public policy factors contemplated by Lord Wilson in his formulation of the relevant approach to be adopted, in his judgment in Hounga at para. [42]. It thus supports the application of the guidance given by Lord Wilson as the relevant analytical framework within which the issue in the present case should be addressed.

Secondly, the fact that the owner could have prevented the conduct of the neighbouring landowners from being criminal by giving his consent for it (although that would also have prevented acquisition of rights by prescription, since they could not then have claimed to have been acting "nec precario", to use the old language of the common law) meant that there was no significant overriding public interest reflected in the criminalisation of what they had in fact done. The statute which created the offence did not give expression to any public policy concern which ought to disturb the balance of interests between the owner of the land and the neighbours reflected in the policy identified by Lord Hoffmann in the Sunningwell case and the doctrines of prescription and lost modern grant.

The same point can be made in the present context. The registered proprietor of a house can prevent a criminal offence under section 144 of LASPOA from occurring, by giving his consent for the squatter to be in the house and thus removing the squatter's status as a trespasser, which is one of the ingredients of the offence specified in section 144. As in the Bakewell Management case, this indicates that there is no overriding public policy concern associated with section 144 which ought to be taken to affect the usual balance of interests between landowner and adverse possessor established by the law of adverse possession. Mr Rainey also pointed out that this is not a fanciful type of case: a trespasser may often regularise his occupation of a property by agreeing to pay the landowner in return for the landowner's consent to his occupation, by granting a licence or a lease.

Mr Karas sought to meet the submission for Mr Best based on Bakewell Management by arguing that the case turned on the specific features of the doctrine of lost modern grant, whereas the law of adverse possession does not depend upon any fiction or presumption of a previous grant of rights by the owner, but only on the conclusion that the former owner's remedies to reclaim possession of the land have become time-barred. However, I am not persuaded that this is a relevant point of distinction. As pointed out above, the reasoning of the Appellate Committee included reference to the wide underlying principle identified by Lord Hoffmann in the Sunningwell case. Further, the main point which was made was not that the possibility of the owner of the land to give consent for its use meant that there was scope for the presumption of lost modern grant to apply, but rather that this feature of the criminal law indicated that there was no overriding public policy reflected in that law which "should preclude the obtaining by prescription, or by presumed grant, of an easement or right over land that it would have been lawful for the landowner to grant notwithstanding that the user was, absent the grant, unlawful and criminal" (para. [43], per Lord Scott; see also paras. [39] and [46]-[47], quoted above).

The analogy with the position in Bakewell Management is a further indication that contravention of section 144 of LASPOA does not have an impact upon the usual operation of the law of adverse possession. This is not a case where the provision of the criminal law reflects any discrete public policy interest in disturbing the usual distribution of rights between landowner and adverse possessor in private law, as set out in the LRA. The public policy concerns balanced and given expression in the adverse possession provisions of the LRA continue to apply with full force, and there is no significant countervailing public policy factor inherent or reflected in section 144 which supervenes to distort the balance of rights set out in the LRA. The "interests of the state" and "the public interest" are not engaged in a relevant way so far as the operation of the LRA is concerned. The position is thus very different from that described by Lord Sumption in Les Laboratoires Servier at paras. [23], [25] and [28].

In light of this discussion of Bakewell Management, I turn to consider Mr Karas's submission based on the first instance decision in R (Smith) v The Land Registry. In my view, it is not an authority which advances the case of the Registrar, for two reasons. First, a first instance decision the reasoning in which was not endorsed by the Court of Appeal, which chose to determine the case by reference to a different analysis, is too fragile a foundation on which to base any argument that Parliament, when enacting section 144 of LASPOA, must be taken somehow positively to have endorsed the alternative reasoning of HHJ Pelling QC. The first instance decision in that case tells us nothing about what Parliament intended should be the effect of section 144 in relation to the LRA.

Secondly, the reasoning of HHJ Pelling QC is not in fact inconsistent with the narrower submission advanced by Mr Rainey. The Judge followed the analysis in Bakewell Management, but found that he was dealing with a general provision of the criminal law which would have prevented the land-owner himself from using the land in the way the alleged adverse possessor had used it: see para. [14] of the judgment, referring to Lord Scott's opinion in Bakewell Management and Glamorgan County Council v Carter. As explained above, that is not the position in relation to section 144 of LASPOA.

Similarly, I do not consider that reference to the Proceeds of Crime Act 2002 supports the case for the Registrar. Part 5 of POCA creates a regime whereby a public authority (the enforcement authority) can seek an order in civil proceedings to recover property which is, or represents, property obtained through unlawful conduct. Unlawful conduct is defined as conduct unlawful under the criminal law (section 241). Section 242 provides that a person obtains property through unlawful conduct "if he obtains property by or in return for the conduct". Property obtained through unlawful conduct is recoverable property under the Act (sections 243 and 304). If property is recovered by the state, an individual with a good claim to it may be able to claim that property from the state (section 281).

In my judgment, Part 5 of POCA does not provide relevant guidance on the meaning and effect of section 144 of LASPOA, so far as concerns the intended impact of that provision on the LRA regime governing the rights of a landowner and an adverse possessor in private law. POCA introduces a distinct regime to allow for the state itself (the enforcement authority) to take steps to strip property from a wrong-doer under certain conditions and subject to certain safeguards. It would give POCA excessive effect to say that it supported an argument that someone should lose rights they would otherwise have by virtue of the LRA, in favour of another private person, without the procedural safeguards which would exist in relation to a POCA claim made against them. Indeed, it might be said that the existence of POCA and the possibility of a civil claim under that Act has some tendency to support the argument for Mr Best in the present context, since it provides a vehicle for vindication of the public interest in the upholding of the criminal law without needing to distort the operation of the LRA in a crude effort to advance that objective.

Moreover, it is questionable whether the requirements of POCA have been satisfied in relation to the acquisition of the house by Mr Best, since he can argue that if he becomes proprietor of the house under the LRA on the basis of his adverse possession of it, the acts of adverse possession on which he needs to rely are not criminal acts in contravention of section 144 of LASPOA, but other acts of assertion of possession by him, such as maintaining the property and the boundary fence. As a result of the mismatch between the conduct which is criminalised by section 144 and the concept of adverse possession for the purposes of the law of property, Mr Best thus has a reasonable argument that, if registered as proprietor, he will not have obtained the house "through unlawful conduct." I mention this not to give a definitive ruling on the potential operation of POCA in the circumstances of this case - I think it would be wrong for the Registrar or a court applying the LRA to try to give rulings at the same time on the theoretical operation of POCA – but simply to highlight the fact that POCA is a separate regime operating according to its own, distinct concepts and with its own, distinct procedures and safeguards, and is not material to the issue before us. The illegality defence should not be imported into the scheme of the LRA in an attempt to short-circuit the POCA procedure.

Finally, for completeness, I should mention two alternative fall-back arguments raised by Mr Rainey, in case he was not successful on the main issue in the appeal. He submitted that even though Mr Best appeared from time to time to have committed offences under section 144 of LASPOA in the latter period of his adverse possession of the house, he could rely on other acts amounting to adverse possession (either of the curtilage of the house, or of the house and curtilage combined) and so should still be entitled to be registered as proprietor pursuant to the LRA. It is not necessary to examine this alternative argument in detail. To my mind, the main point to be derived from reference to arguments of this kind is that they illustrate the unsatisfactory arbitrariness which would be introduced into the operation of the LRA if section 144 of LASPOA were given the effect for which the Registrar contends.

Mr Rainey also sought to bolster his submissions by reference to section 3 of the Human Rights Act 1998 and what he contended were the Convention rights of Mr Best under Article 8 (right to respect for his home) and Article 1 of Protocol 1 (right to respect for his property, including rights under the LRA). In view of the conclusion to which I have come on the main issue on the appeal, regarding the true construction of the LRA as a matter of ordinary statutory interpretation, it is neither necessary nor appropriate to venture into the intricacies of argument based on Convention rights. Reference to section 3 of the Human Rights Act for the purposes of interpretation is only necessary if the construction of a statutory provision according to ordinary domestic principles of interpretation is inconsistent with Convention rights, so that recourse to the more powerful interpretive obligation in section 3 is required in an effort to achieve a different construction which is compatible with Convention rights. In the present context, the Registrar did not suggest that the interpretation of the LRA which I have concluded is correct - which is simply to apply the LRA in this case in accordance with its express terms - would be inconsistent with anyone's Convention rights. It would be unhelpful and inappropriate to burden the legal analysis in a case like this with detailed argument and analysis of authority on Convention rights, when a sensible and rights-compatible interpretation can be arrived at without needing to do so. To a significant degree, the Convention rights reflect values and assumptions already inherent in domestic law and established principles of interpretation, and reference to the Convention rights themselves is not required in every case.

Conclusion

For the reasons given above, I consider that the appeal should be dismissed and that the order made by Ouseley J striking down the decision of the Registrar in which he declined to register Mr Best as proprietor of the house should stand.

Lord Justice McCombe:

I am most grateful to Sales and Arden LJJ for their judgments in this case, both of which I have read in draft. I agree that the appeal should be dismissed for the reasons given by Sales LJ, and for those given by Arden LJ in paragraphs [106]-[108] below.

I would add that I entirely agree with Sales LJ that the correctness of the judge's conclusion on the main issue in this case is indeed powerfully supported by the decision of the House of Lords in Bakewell Management Ltd. v Brandwood Ltd., supra. For my part, I do not accept the submission of Mr Karas QC that there is, for present purposes, a material distinction between the acquisition of property rights, adverse to the legal title, by prescription and the barring of a previous legal title by limitation or by the analogous provisions of the LRA. The distinction, in the present context, is to my mind, unreal. The only material question in practice is whether concepts of illegality should prevent the acquisition of a legal title by a trespasser. For the reasons given by Sales LJ in paragraphs [89] and [90] above, I do not consider that, for these purposes, any distinction can be drawn on the basis of the different theoretical ways in which the law confers the new title upon the trespasser.

Lady Justice Arden:

I too am grateful to Sales LJ for his clear and detailed judgment. I agree with him and McCombe LJ that the commission of an offence under section 144 of LASPOA does not bar an application for registration of adverse possession. I reach this conclusion purely through conventional statutory interpretation. I adopt Sales LJ's definitions.

Legislation can take various approaches to the application of the ex turpi causa principle. Parliament is not bound to observe it. Parliament can create exceptions to the principle on an ad hoc basis. Therefore it may allow parties to retain benefits through the commission of a crime: see for example section 29(2) of the Forfeiture Act 1982, recently considered by HHJ Pelling QC in Chadwick v Collinson [2014] EWHC 3055 (Ch). Parliament has given the court power to make an order on an application tainted by an unlawful act in other cases, such as A & ors v SA [2013] EWHC 426 (Fam), where the court made a parental order in respect of a child notwithstanding payments in connection with the surrogacy arrangements under which the child was born beyond the permitted amount, which may have involved the commission of a criminal offence.

Parliament could, therefore, have given the Registrar some power to vary the consequences of the commission of an offence under section 144 of LASPOA on an application for registration of adverse possession. However, it has not done so. So we are faced with the stark choice: the application cannot proceed where reliance is placed on the conduct involving the commission of an offence under section 144 or the application can proceed even though the offence has been committed.

The subject-matter of the legislative examples that I have given is far removed from adverse possession, and they are cases where Parliament has made express provision. They are modern examples of the varying approaches to the ex turpi causa principle.

Statutory interpretation proceeds on the basis that Parliament legislates on the basis that the general principles of the law, such as ex turpi causa, apply unless the contrary intention appears: see my judgment in this court in Lewisham LBC v Malcolm at [66] and following.

Thanks to the expert analysis by the Law Commission and the Land Registry, we have some of the best material a court could have for purposive statutory interpretation. I refer to the analysis by Sales LJ of the policy behind the provisions in the LRA on adverse possession to be found in Land Registration for the Twenty-first Century: A Consultative Document (Law Com. No. 254) and the subsequent report, Land Registration for the Twenty-first Century: A Conveyancing Revolution (Law Com No 271), issued in each case jointly by the Law Commission of England and Wales and the Land Registry. I was Chairman of the Law Commission when the first of those documents was published. Those reports were before Parliament when the LRA was enacted.

The Consultative Document and Report make it crystal clear that the adverse possession provisions of the LRA serve valuable social and economic purposes, including that of ensuring that land is kept marketable and is not "sterilised" by the inaction of the true owner. Land is a valuable commodity. It provides space for homes, offices and agriculture. But, in addition to that, land can be used to raise money to create new businesses and help the economy.

Given Parliament's purpose, what should the court conclude about the intention of Parliament in enacting section 144? In my judgment, the intention of Parliament by implication was that the commission of an offence under section 144 of LASPOA should not operate as a bar to registration of adverse possession for the following reasons taken together:

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 (8^th 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.

I do not rely for my conclusion on Bakewell Management Ltd v Brandwood. As Mr Karas submits, this is a materially different case. Bakewell was about the acquisition of an easement by prescription. Prescription is different from adverse possession since it provides a different means of acquiring title (see per Lord Hoffmann in the Sunningwell case in the passage cited at paragraph 82 above). The person who acquires title does not have to rely on his own wrongful act to obtain title, since after 20 years the owner is presumed to have given permission for the user some time before the user commenced. By contrast, in a case such as the present, the effect of the adverse possession is not that the owner is deemed to have given permission for the user (which would indeed prevent adverse possession from continuing) but simply that the adverse possessor is in a position to apply for the land to be registered in his name. In making that application, he has to prove adverse possession. In a case such as the present, he will rely on a breach of section 144 of LASPOA.

Bakewell is, however, helpful to this extent. It is an example of a case where the conclusion that the criminal law did not prevent the acquisition of title was arrived at by a process of conventional statutory interpretation. The House concluded that, since by section 193 of the Law of Property Act 1925 Parliament had criminalised the use of another's property without authority and not the owner's grant of authority for the user in question, the statute did not, on its true, and as I see it conventional, construction, prevent the operation of the fiction of lost modern grant (see, for example, per Lord Hope at [8] and per Lord Scott at [39]).

Nor do I rely on Hounga v Allen. This is an important decision. However, as the judgments of the majority and minority in Hounga, and of the majority in Les Labaratoires Servier v Apotex, make clear, the judgment of the majority in Hounga is breaking new ground. It was very different case. Hounga applies and develops jurisprudence of the Supreme Court of Canada on claims for compensation for road traffic accidents. Adverse possession is a very different field of law. It may for instance result in the applicant obtaining a very substantial profit from his wrongful acts.

In so far as Sales LJ relies on Hounga for the proposition that, where there are two conflicting statutory policies, the court may decide which is to prevail (see, for example, the first sentence of paragraph [70], above), I do not think for the reasons I have already given that it necessary to travel that far in this case: I am able to reach my conclusion by means of statutory interpretation and independently of any balancing of two conflicting policies.

For these reasons, I conclude that, on the true interpretation of schedule 6 of the LRA and section 144 of LASPOA, it is the intention of Parliament that an application for registration of adverse possession should not be barred by reliance on acts in contravention of section 144 of LASPOA. The subject matter is sufficient to exclude ex turpi causa in this instance. The provisions of schedule 6 of the LRA must be interpreted to give effect to that intention. Section 144 and schedule 6 operate independently of each other. Parliament's decision to enact section 144 in separate legislation reinforces this conclusion. The Registrar was right to raise the questions that he has done. But in my judgment, the ex turpi causa principle is excluded from schedule 6 of the LRA to the extent of any criminal conduct under section 144 of LASPOA. I would also dismiss this appeal.

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	England and Wales Court of Appeal (Civil Division) Decisions
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: http://www.bailii.org/ew/cases/EWCA/Civ/2015/17.html Cite as: [2015] CP Rep 18, [2015] 4 All ER 495, [2015] 3 WLR 1505, [2015] EWCA Civ 17, [2015] HLR 17, [2016] QB 23