We welcome again Anis Waiz, solicitor and head of commercial litigation at Curtis Law Solicitors, as he continues his critical review of current case law.
Lord Mansfield CJ in Holman v Johnson (1775) 1 Cowp 341, 343: observed
"No court will lend its aid to a man who founds his cause of action upon an immoral or an illegal act. If, from the plaintiff’s own stating or otherwise, the cause of action appears to arise ex turpi causa, or the transgression of a positive law of this country, there the court says he has no right to be assisted. …"
This case raised a novel point as to whether the criminal offence of trespass by "living in" a residential building, pursuant to section 144(1) of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (“LASPOA”) prevented time running for applications for registration of title by adverse possession under the Land Registration Act 2002 (“LRA”).
The Chief Land Registrar decided that it did. The Claimant challenged that decision by way of Judicial Review on the basis that LASPOA was never intended to have that effect on registration of title.
By way of brief resume the concept of adverse possession is set out in J A Pye (Oxford) Ltd v Graham [2002] UKHL 30, [2003] 1 AC 419. The two key ingredients to possession being possession in fact and an intention to possess.
The case provides a very useful resume on the maxim no action may be founded on an illegal or immoral conduct (ex turpi causa).
This blog will concentrate on the issue of whether the offence of trespass prevented time running. The case did consider a number of other issues relating to possession and Human Rights which are outside the scope of this blog. The reader is referred to the law report for further details.
Background
The property a dwelling house (“the Property”) was registered at HM Land Registry. The registered proprietor had died. In November 2012, the Claimant applied to register title to the property on the basis that he had been in adverse possession. The application was made on the basis that he had been in possession for a period of ten years ending on the date of the application as required by Schedule 6 paragraph 1 to the LRA.
The claimant asserted that in 1997 he had been working on a nearby property and was told that the last occupier of the Property had died. The Property was empty and vandalised.
The claimant entered the Property and did work to it, repairing the roof in 2000, clearing the garden and taking other steps to make it wind and watertight. He moved in at the end of January 2012 and claimed that he had treated the house as his own since 2001. There was no dispute about his possession of the Property.
The court noted that the claimant had been living in the Property in breach of the criminal law as from 1 September 2012, when s144 LASPOA came into force.
The Statutory Provisions
In respect of the LRA the following sections were material:
1. Schedule 6 makes provision for title by adverse possession, by registering an adverse possessor. Schedule 6, paragraph 1 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”.
2. “Adverse possession" is defined in paragraph 11, as possession in circumstances in which time would be running under s15 of the Limitation Act 1980 had it not been disapplied by s96 of the LRA.
3. Once an application is received, the Registrar has to give notice of it under paragraph 2 of Schedule 6 to the registered proprietor of the estate, any charge, or to someone registered under the rules as entitled to be notified.
4. By s73 where an objection is made and not rejected as groundless by the Chief Land Registrar, and not resolved by negotiation, it must be referred to the First Tier Tribunal.
5. Decisions of the Chief Land Registrar cancelling, i.e. rejecting, an application as substantially deficient are judicially reviewable.
In respect of LASPOA:
1. Section 144 (1) (a) a person commits an offence if the person is in a residential building as a trespasser having entered it as a trespasser.
2. Section 144 (2) an 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. Section 144 (3) (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.
The Issues
Trespass in section 144 LASPOA was previously save for a limited exception a civil matter. Tortious acts were effective over time to lead to the transfer of title to registered land and to the extinguishment of claims to title to unregistered land.
Trespassory possession can still found an application for title under Schedule 6 LRA in relation to acts or buildings to which s144 does not apply.
Thus it is not unlawful to squat in the area surrounding the building, since "building" includes a structure but s144 (3) (b) LASPOA does not extend to land occupied or owned with the building, even where it is a crime to squat in the building itself.
It would not be unlawful under LASPOA to enter a building as a trespasser and to occupy and possess it for a purpose other than "living in" i.e. for use as an office or workshop. Those acts of possession would amount to adverse possession, without being criminal.
Materially LASPOA does not apply to adverse possession through residence in a building which is not a "residential building" as defined in s144 (3) (a).
LASPOA does not contain any transitional provisions for those who might be entitled to make an application for registration of title under the LRA.
The Judgment of HHJ Ouseley is lengthy and the reader is referred to the same in full. As a summary the court considered the following issues:
1. Did section 144 LASPOA affect adverse possession under the LRA? This issue was not one of construction of the LRA as the issue of adverse possession was common law in origin, not statutory, although referred to in statutes (see sec15 of the Limitation Act,) which applies to both registered and unregistered land as did s144.
2. The Defendant’s decision and the grounds created common problems for both registered and unregistered land, since the statutory definition of "adverse possession" in the LRA refers to the Limitation Act, which applies to unregistered land. The effect on title to unregistered land would be a particularly problematic consequence of the Defendant’s approach to the effect of LASPOA, since the essence of title to unregistered land is possession and not registration.
3. As to the issue of ex turpi causa this depended on context. It did not offend the English legal system for someone to plead and give evidence of his tortious trespass in an assertion of title or in the satisfaction of statutory conditions for making an application for registration under Schedule 6 LRA. The essence of limitation is not to enable reliance on the defendant’s own wrong alone but also on the lack of action by an owner to assert his rights in the face of the defendant’s wrong.
4. Reviewing the various authorities (Tinsley v Milligan [1994] 1 AC 340, Stone & Rolls Ltd (in liquidation) v Moore Stephens (a firm) [2009] UKHL 39, [2009 1 AC 1391) it was observed that a general and fundamental principle of public policy was that a person should not be entitled to take advantage of his own criminal acts to create rights to which a Court should then give effect. However this was not an absolute rule or principle, unyielding to any circumstance. It was the starting point. Public policy may yield to competing public policy interests, the greater advancement of which are imputed to Parliament’s intention in any specific statute.
5. The public interests which lie behind enabling a trespasser to acquire title by adverse possession and, after a shorter period to apply for registration as the proprietor of registered land are clear. Section 144 LASPOA was not the first time an act of trespass was criminalised. However, the public policy purposes behind the operation of the Limitation Act were not diminished by the fact that an act of trespass may be a crime; it was merely that there is a stronger countervailing public interest in preventing a criminal taking advantage of his crime than there is preventing a tortfeasor taking advantage of his tort.
6. There was no evidence that Parliament ever actually considered the issue of adverse possession, or that it ever thought that there was a mischief which had to be dealt with either way in relation to the effect of LASPOA on adverse possession. Parliament made the assumption, that adverse possession could be founded effectively on acts of criminal trespass.
7. Parliament should be taken to have thought that the public policy advantages of adverse possession at common law meant that the mere fact that the adverse possession was based on criminal trespass did not and should not preclude a successful claim to adverse possession.
8. However past criminal offences would still remain for prosecution. The offences would continue, and prosecutions could be brought after a change in the registered title in respect of periods before the date of application. The same applied in this case where, the period of criminalisation comes after the date on which an application could have been made.
9. The purpose of s144 was to help the property owner who required police action rather than an action for civil trespass to deal with for example a numbers of squatters, who refused to depart, and exploited the civil law’s delays against the owner. It was not to affect the delicate workings of the LRA.
The Decision
Accordingly the Chief Land Registrar’s decision to refuse registration was founded on an error of law as to the effect of s144 LASPOA on adverse possession.
Mr Best’s application succeeded, and the decision of the Chief Land Registrar was quashed and would now proceed through the next stage in Schedule 6 of the LRA.
Conclusion
At the heart of this decision lay a tension between the LRA and a new offence of trespass under LASPOA and the doctrine of ex turpi causa.
As noted above the purpose of s144 LASPOS was to provide a property owner with redress arising from a criminal offence. It did not alter the existing workings of the LRA. There is a clear distinction between criminal acts and the system of registration.
MR Justice Ouseley noted
“The purpose of s144 was to help those who needed rather more immediate and committed police action on the side of the property owner than an action for civil trespass alone afforded, to deal with perhaps numbers of squatters, who refused to depart, and exploited the civil law’s delays to fortify the house against the owner, to use his possessions as their own, at a cost to him which was unlikely to be recovered. It was not to throw a spanner into the delicate workings of the 2002 Act, with random effects on the operation of adverse possession, all without a backward glance.”
Materially Mr Justice Ouseley observed that s144 drew no distinction between the effect on those who have just squatted and those who neared ten or twelve years squatting at the commencement date, and those who could have applied for registration at that date.
This is a very interesting case and one which highlights the tensions in statute and common law principles. No doubt there will be more challenges and unforeseen results.
Kind regards
