DOES wrongdoing by a squatter prevent him from acquiring title to another person's land via the law of adverse possession? The answer is plainly “no” where the squatter is a civil, tortious wrongdoer: the law not only condones, but positively requires a successful adverse possession claimant to have committed the tort of trespass over the true owner's land (this condition is inherent in the requirement that the squatter's possession be “adverse”). But what happens where the tortious acts that establish the squatter's adverse possession also constitute a criminal offence? This was the tricky question facing the court in Best v The Chief Land Registrar [2014] EWHC (Admin) 1370.
In the late 1990s, Mr. Best discovered an empty semi-detached house in Ilford, Essex, which he believed to be abandoned. In fact, the property was not ownerless; it was registered in the name of Mrs. Curtis, on whose death the property had passed to her son. Mr. Best spent many years making substantial improvements to the house, before finally moving in in early 2012. Later that year, in November, Mr. Best applied to HM Land Registry to become the new registered proprietor, within the adverse possession provisions of the Land Registration Act 2002, Schedule 6 (“LRA”). It was conceded that Mr. Best had completed the period of adverse possession required for making a Schedule 6 application – “ten years ending on the date of application” – but two big hurdles threatened his bid for ownership.
First, Schedule 6 provides that a squatter will only succeed in taking over the registered title in the (relatively unlikely) event that the current proprietor fails to object when notified of the squatter's application by the Registry. Mr. Best had to hope that the property's current owner, Mrs. Curtis's son, would be insufficiently vigilant to launch an objection.
Secondly, and fundamentally to the case, a new criminal offence came into force on 1 September 2012, three months before Mr. Best submitted his Schedule 6 application, rendering it a crime to “squat in a residential building” (Legal Aid, Sentencing and Punishment of Offenders Act 2012, s. 144 (“LASPOA”)). This wide offence, punishable by up to six months' imprisonment, is committed by any person who enters “a residential building as a trespasser”, “knows or ought to know that he or she is a trespasser”, and “is living in the building” or intends to do so. Mr. Best was clearly caught by the provision. Thus, for the final three months of his qualifying 10 years in adverse possession, he was not only a tortious trespasser, but also in breach of the criminal law. What impact might this criminal conduct have on his civil law Schedule 6 application?
This question raises a fundamental dilemma. On the one hand, it is a general principle of the common law that “no judicial system should enforce rights which derive from the criminal acts of the person who seeks to enforce them”: ex turpi causa non oritur actio (at para. [34]). On this basis, Mr. Best's claim should have failed. This line of argument was supported by published Land Registry guidance (Landnet No. 32, October 2012, p. 5), and by R. (on the application of Smith) v Land Registry [2009] EWHC (Admin) 328 (upheld on appeal, for different reasons: [2010] EWCA Civ 200; [2011] Q.B. 413), which disallowed a squatter's claim where the relevant possession amounted to a criminal obstruction of a highway. On the other hand, it was arguable that Parliament had no intention for the LASPOA offence to thwart civil law adverse possession claims, having – disappointingly – failed to consider the issue during the statute's enactment. There was also House of Lords' precedent within the law of easements that rights might arise via long usage of land, even where that usage constitutes a criminal offence (Bakewell Management Ltd v Brandwood [2004] UKHL 14; [2004] 2 A.C. 519).
The Land Registry, following its guidance, rejected Mr. Best's Schedule 6 application from the outset. The squatter thereupon successfully challenged the Registrar's decision, via an application for judicial review. Ouseley J., sitting in the High Court in Best, decided that LASPOA had no impact on Mr. Best's civil law claim, and quashed the Registrar's decision, clearing the way for Mr. Best's Schedule 6 application to proceed. In practice, of course, Mr. Best's apparent victory is likely to be hollow: extensive media coverage of the case has increased the likelihood that the property's real owner will emerge and oppose the squatter's Schedule 6 application. The decision's real significance lies in the masterly manner in which Ouseley J. dealt with the LASPOA conundrum as a matter of principle. For three key reasons, his decision should be warmly welcomed.
First, the judge recognised that, in principle, the ex turpi causa maxim should be a convenient “starting point”, but not “an absolute rule”, “unyielding to any circumstance” (at para. [45]). Rather, the maxim should be disapplied where, on balance, the policies it serves (inter alia, not permitting criminals to profit from their wrongs) are outweighed by the broader policy goals of the relevant conflicting civil law regime. This approach is eminently sensible: it seems disproportionate to apply the ex turpi causa maxim mechanically, regardless of the seriousness of the crime, or the policies served by the conflicting civil law regime. It is also consistent with the general tenor of previous judicial statements about the maxim (see e.g. Stone & Rolls Ltd. v Moore Stephens [2009] UKHL 39; [2009] 1 A.C. 1391 at [25]), and with Law Commission recommendations (Law Com. No. 320, 2010). Significantly, since Best, the Supreme Court has itself adopted a similarly context-sensitive approach to the ex turpi causa maxim (Hounga v Allen [2014] UKSC 47, [2014] 1 W.L.R. 2889 at [42]). Technically, Ouseley J. justified side-lining the maxim by “imput[ing]” to Parliament an intention that LASPOA (or indeed any statute) was enacted to advance the greater public good (at paras. [45], [86]) and that ex turpi causa was inapplicable where it did not serve that broad goal. This was a neat – albeit slightly artificial – way of sidestepping the maxim's apparent rigour. It would be preferable if judges could disapply the maxim without needing to resort to fictional parliamentary intentions. The Hounga decision may have made this possible.
Secondly, for three key reasons, Ouseley J. was right to decide that, on balance, there was greater public interest in recognising, than in denying, Mr. Best's civil law claim. (1) Parliament recognises that adverse possession advances important policy goals (see Law Com. No 254, 1998, ch. 10), and has created comprehensive civil law regimes that carefully balance owners' and squatters' interests (Limitation Act 1980 and LRA 2002). The introduction of a rigid ex turpi causa principle would destabilise these regimes, giving undue preference to owners, who are already well protected by the civil law. (2) A pre-requisite for the LASPOA offence is that the squatter is also a tortious trespasser. The offence is designed to give householders access to immediate police assistance in removing certain trespassing squatters from their land, rather than leaving them to rely on the “unduly slow”, “cumbersome”, and “expensive civil processes” (at para. [27]). LASPOA is thus a very particular criminal offence: its aim is to bolster, rather than conflict with and thwart, existing civil law rights and claims. (3) One justification for the law of adverse possession – preventing landowners sitting on their rights – has, paradoxically, been strengthened by LASPOA. Now that it is easier for owners to evict squatters, there is less excuse for not doing so.
Thirdly, Best provides some useful, obiter guidance regarding the effect that other criminal offences may have on adverse possession claims. Ex turpi causa is seemingly inapplicable where the squatter commits criminal acts by gaining entry to premises using violence (Criminal Law Act 1977, s. 6), blocking a highway (Highways Act 1980, s. 137; Best effectively overruled Smith (2009) on this particular point), or committing criminal damage (Criminal Damage Act 1971). More problematic is the offence of interrupting recreational use of a village green (Inclosure Act 1857, s. 12), committed in Walton v Hedleyhope Parish Council (2012), REF/2011/0399 (HM Land Registry Adjudicator), where a squatter had fenced off some parkland. The Adjudicator applied a similar balancing test to that in Best, and decided that greater public good was served by applying the ex turpi causa rule, to prevent future incursions on publicly enjoyed land. Unfortunately, Walton was not considered in Best.
Whilst the Best decision is therefore to be applauded, niggles remain. Most problematic is the fact that, even though Mr. Best's criminal conduct did not bar his civil law claim, he remains vulnerable to criminal prosecution and, should his Schedule 6 application for title succeed, might have to give up the profits of his crime under the Proceeds of Crime Act 2002. Can this wide disparity between the civil and criminal law's treatment of squatters be justified? It is worrying that Parliament enacted the LASPOA offence without considering its civil law ramifications. More fundamentally, Best leaves one wondering whether the new LASPOA offence is justified at all. It was intended to offer a more powerful means by which homeowners could enforce their civil law rights against trespassing squatters. But why enact criminal legislation, with the complications that follow, to plug perceived gaps in the civil law's remedial responses to trespassing?
