Can squatters take away your property?

4th March 2015 by

The Court of Appeal has confirmed that someone who commits the criminal offence of squatting in residential premises can still apply to be registered as the owner of the property he is squatting in if he stays there for long enough without the true owner taking proceedings to remove him.

The law on adverse possession has long been that if someone moves onto someone else’s land and treats it as his own, after 12 years the original owner loses the right to claim possession of the land, and the squatter can be registered as the owner.  Changes to the rules to make this more difficult (especially in the case of registered land) were brought in with the Land Registration Act 2002, but the law still recognised that a landowner only had 12 years to remove someone from his land or he would lose it.

In 2012, the government brought in the Legal Aid, Sentencing and Punishment of Offenders Act, commonly known as LASPO.  Shoe-horned into the bill at the last minute, and without any real debate, was what became section 144, which criminalised living in a residential building as a trespasser.  The new offence left a lot of questions unanswered, largely it might be thought, because of the lack of debate on its consequences, but chief amongst those questions was how the new criminal offence affected the old rules on adverse possession.  After all, if someone who was living on another’s land was committing a criminal offence, how could he claim to be entitled to get possession of the land?

That question was answered in 2014 by the High Court in the case of Best -v- The Chief Land Registrar, and the Court of Appeal has now agreed with the High Court (the judgment is here).  The answer is that the new criminal offence has no effect on the law on adverse possession, so you can be a criminal and still get a very valuable property from your criminal act.  That will sound very peculiar to those of us brought up to believe that crime should not pay, but the court’s reasons are really very simple.

The court pointed out that parliament has laid down the rules on adverse possession in great detail.  LASPOhowever made no mention of those rules at all, either to explain how they were changed by the new criminal offence, or to exclude them where an offence was committed.  It also pointed out that an essential part of adverse possession has always been unlawful behaviour by the squatter, and the fact that that is now criminal behaviour too makes no real difference to the rules parliament has put in place.

The decision might also have come as a surprise to some of the politicians who voted for LASPO.  There are undoubtedly lessons here for those politicians on having proper debate before creating new law; section 144 was a late amendment to the Bill which otherwise had nothing to do with squatters or land ownership, and was then debated for a little over 90 minutes during which no MP even mentioned adverse possession.

More importantly for landowners though, if you are not resident in your property, make sure you visit often and if you find someone there who should not be there, do something about it.  Just because they are committing a criminal offence does not mean that you are safe, and if you let them stay there, you could lose the property.

For advice on the issues in this article, contact Mark Davies, Dan Winslow or Ben Parr-Ferris.