Squatting and adverse possession

The Land Registry have just published the latest edition of Landnet which provides guidance and industry news. The below offers their guidance on squatting and possession. For more information please read the latest Landnet bulletin.

Squatting in a residential building was made a criminal offence with effect from 1 September 2012 under section 144 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012.

This is relevant to land registration because, in line with the High Court decision in Smith v Land Registry [2009] EWHC 328 (Admin), we will not proceed with an application based on adverse possession unless, from the evidence we have seen, we are satisfied on the balance of probability that, among other things, the factual possession relied on did not constitute a criminal offence.

However, for two main reasons, many applications based on adverse possession will be unaffected by this new offence.

First, the majority of such applications are concerned with just land, as opposed to buildings.

Secondly, the provision is not retrospective. Section 144 does not criminalise any squatting taking place before 1 September 2012 — although, because of subsection (7), later squatting is not prevented from being criminal as a result of having started before this date. So:

– where the building is part of a registered title and the application is made under paragraph 1 of Schedule 6 to the Land Registration Act 2002, the offence only needs to be considered if the application is made on or after 1 September 2012

– where the building is part of an unregistered title, the offence only needs to be considered if at least part of the period of adverse possession relied on for the application falls on or after 1 September 2012

– where the application is made under the transitional provisions, the offence does not ever need to be considered.

Practice Guide 4 — Adverse possession of registered land and Practice Guide 5 — Adverse possession of (1) unregistered land (2) registered land where a right to be registered was acquired before 13 October 2003 will be updated as soon as possible to refer to the new offence.

There has for many years been another criminal offence that squatting may involve — and which may be committed even where the squatting is not in a building but is just on land.

The offence is under section 7 of the Criminal Law Act 1977 and is committed when a trespasser fails to leave residential premises (which means a building or “land ancillary to a building”) on being required to do so by or on behalf of a “displaced residential occupier” or “an individual who is a protected intending occupier” of the premises.

The Minister explained to Parliament, when putting forward the provision that became section 144 of the 2012 Act, some of the limitations of section 7 of the 1977 Act: it “does not protect…many residential property owners, including landlords, local authorities and second home owners, who cannot be classified as displaced residential occupiers or protected intending occupiers”.

Please note our advisory policy. In particular, Land Registry cannot advise on whether or not the new offence or any other offence has been committed in particular circumstances.

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