GET OFF MY(?) LAND - ADVERSE POSSESSION FOR AGRICULTURAL LAWYERS
“GET OFF MY[1] LAND!”
SOME ADVERSE POSSESSION TOOLS FOR
THE AGRICULTURAL/RURAL AFFAIRS LAWYER
OLIVER RADLEY-GARDNER
FALCON CHAMBERS
twitter: @falconchambers1
Introduction
Land ownership disputes are frequently on our desks as rural and agricultural lawyers. The struggle to own the hedgerow, or the ditch, or the field next door, is one that we are all too familiar with. There are a number of principles to help us sort those disputes out. Interpretation of deeds, application of ownership presumptions, boundary agreements and so on are all concepts that we need to have to hand, as well as sound advice on the economics of this kind of litigation. Adverse possession is another tool, albeit one that has been seen by some to have been stripped of wide application by the strictures of the Land Registration Act 2002.
Some title disputes can also be resolved by reaching for the box marked "proprietary estoppel". In fact, there is nothing to stop you using proprietary estoppel as well when claiming adverse possession of registered land under the Land Registration Act 2002 (LRA 2002) either, as the First Tier Tribunal (Property Chamber) has the power to determine what relief should be granted for an estoppel in the context of an adverse possession claim (section 110) if the estoppel condition is relied upon.
It is to be noted that the law of adverse possession is being reviewed as part and parcel of the Law Commission’s re-examination of the LRA 2002: see the very useful paper at https://www.lawcom.gov.uk/wp-content/uploads/2016/03/cp227_land_registration_web.pdf. Charles Harpum has written a point-by-point reply which is worth a look at https://www.falcon-chambers.co.uk/uploads/docs/section9/Response_to_LC_CP_227_on_Land_Registration_(2).pdf.
It is also worth saying that there have been a number of other areas in which the law of adverse possession has - contrary to the confident predictions of its demise following the LRA 2002 - developed quite substantially. Encroachments remains a puzzle that has yet to be unravelled. The law of implied licences remains a mess, with cases still proceeding on a variety of legal bases.
Adverse Possession Under the 2002 Act: The Scheme
Under the old law, to put it bluntly, land theft was legal. It did not matter that the land was registered or unregistered, or that the paper title owner had no present use for it and therefore no practical need to object to a squatter’s use. For once, the advice that sleeping dogs should be best left to lie was not sound advice.
Under the new law, however, matters had changed so that there is put in place what is in effect a bureaucratic notice regime (and a right to rely on adverse possession as a defence to a possession claim). The 2002 Act was avowedly anti-squatter, and was intended to preserve the integrity of registered title. The process is described in Law Com 227 as follows (@17.10ff):
“The new scheme governing claims to adverse possession is contained in schedule 6 to the LRA 2002. Under that schedule, a person who has been in adverse possession for a minimum of ten years can apply to the registrar to be registered as proprietor of the estate.17 The application for registration is made under schedule 6, paragraph 1 to the LRA 2002, which provides as follows: A person may apply to the registrar 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. When an application is made, the registrar is required to give notice to the registered proprietor and to other specified persons, including the proprietor of a registered charge affecting the registered estate.18 The registered proprietor (and others notified) have 65 business days from the date of issue of notification to respond to the notice. A response requires the registrar to deal with the application under schedule 6, paragraph 5.19 Under that paragraph, the registrar must reject the application for registration by the adverse possessor unless the application meets one of three “conditions
17.11 If no response to a notification is received within the prescribed period, or if one of the conditions in paragraph 5 is met, then the claimant “is entitled to be entered in the register as the new proprietor of the estate”. A statutory conveyance of the registered title is therefore made, as a result of which the claimant obtains title to the land by registration through his or her adverse possession. The title acquired is indefeasible, subject only (as are all registered titles) to a claim to alteration or rectification of the register under schedule 4 to the LRA 2002. It has been held that registration of a claimant as proprietor under schedule 6 will be rectified as a mistake if in fact the claimant was not in adverse possession of the land for the requisite period.
17.12 Where a registered proprietor (or other person notified of the application) requires the application to be dealt with under schedule 6, paragraph 5, the claimant’s application for registration will be rejected unless the claim falls within one of three “conditions” (which we consider at paragraphs 17.25 and following below). The registered proprietor is then given two years in which to commence proceedings for possession of the land.22 If no such proceedings are commenced, then the claimant may make a further application for registration if he or she has continued to be in adverse possession.23 That further application does not initiate another notification to the registered proprietor. Instead, when an application is made under paragraph 6 the claimant “is entitled to be entered in the register as the new proprietor of the estate”.24
17.13 The outcome of a claim to title through adverse possession under the schedule 6 procedure will therefore either be that the registered proprietor vindicates his or her title and brings the claimant’s adverse possession to an end, or the claimant obtains title to the land by registration.
17.14 Where an application is required to be dealt with under schedule 6, paragraph 5 there are three situations – referred to in the statute as “conditions” – in which the claimant will be registered as proprietor despite his or her application being opposed. These conditions are given in paragraph 5(2) to (4) in the following terms: (2) The first condition is that— (a) it would be unconscionable because of an equity by estoppel for the registered proprietor to seek to dispossess the applicant, and (b) the circumstances are such that the applicant ought to be registered as the proprietor. (3) The second condition is that the applicant is for some other reason entitled to be registered as the proprietor of the estate. (4) The third condition is that— (a) the land to which the application relates is adjacent to land belonging to the applicant, (b) the exact line of the boundary between the two has not been determined under rules under section 60, (c) for at least ten years of the period of adverse possession ending on the date of the application, the applicant (or any predecessor in title) reasonably believed that the land to which the application relates belonged to him, and (d) the estate to which the application relates was registered more than one year prior to the date of the application. The first two situations are cases in which the claimant to adverse possession is in fact entitled to legal title to the land on some other basis; either through proprietary estoppel (the first condition) or “for some other reason” (the second condition). The third situation is the only one in which the claimant’s application succeeds on the basis of adverse possession.
Adverse Possession: Some[3] Topical Issues for the Countryside Lawyer
Issue One: The Correct Test
It is always important, when advising on adverse possession, to keep in mind that there are a number of variables which interlock with one another. First of all, it is important that we bear in mind that we have to approach an assessment of a case holistically. It is inappropriate to dissect the facts and assess each category of conduct in isolation. In Palfrey v Wilson[2007] EWCA Civ 94, at para 15, where Tuckey LJ emphasised the need for a “holistic” approach to the facts, stating that a judge was not required to “fine slice each and every event and assess its individual merit”.
There are two key variables: what is the land in question, and what has the squatter done? Red House Farms v Catchpole [1977] 2 E.G.L.R. 125 is a good illustration of the fact that limited activities on useless land will do for the purposes of adverse possession.
Sub-Issue One: Grazing
Grazing has, on its own, often failed to satisfy the Court that adverse possession has taken place. Again, it is important to bear in mind the Palfrey admonition: do not salami slice the acts of possession and then examine each bit in isolation. The latest word on grazing is that of Lewison LJ, set out below. Grazing needs to be contextualised with all the other acts of user.
(1) In Powell v McFarlane (1977) 38 P & CR 452 the grazing of cows and goats insufficient as consistent with the taking of a profit from the land.
(2) In Boosey v Davis (1987) 55 P & CR 83: intermittent grazing of scrubland insufficient.
(3) In Inglewood Investment Company Ltd v Baker[2002] EWCA Civ 1733, no weight was attached to the grazing of sheep, alongside other intermittent acts of user
(4) In Smith v Waterman[2004] EWHC 1266 (Ch), grazing horses and other animals was simply treated as one of a series of facts to be looked at “in the round” to establish whether the squatter had been in possession.
(5) The character of the land meant that grazing carried some weight in Chambers v London Borough of Havering [2011] EWCA Civ 1576, at [54] and [56], though a retrial was ordered to determine the issue finally; Grazing was not sufficient in Avon Estates Limited v Evans [2013] EWHC 1635 (Ch)
Sub-Issue Two: Fencing
Fencing is often said to be the strongest indicator of animus. It is a physical manifestation of the inner will to exclude. What, though, if the fence, though a barrier to the outside world, also has a separate function which is not exclusionary? This question has given rise to a surprising welter of cases on the metaphysical significance of the humble fence.
(1) Is a fence put in place to keep dogs in sufficient to manifest an animus to keep the world out? In Hounslow London Borough Council v Minchinton (1997) 74 P & CR 221 the squatters used a strip as garden. A fence was installed to keep their dogs from escaping. Millett LJ dismissed the suggestion that they had no animus: ‘Their motive is irrelevant. The important thing is that they were intending to allow their dogs to make full use of what they plainly regarded as their land, and which they used as their land.’
(2) In Inglewood Investment Company Ltd v Baker (above), it was held that a fence erected on one side of a small triangle of rough land was not an unequivocal act of possession, as the fence was not intended to keep the owner and others out, but to keep sheep in. The squatter had given evidence that this had been his intention. In the circumstances, there was a lack of subjective intent and, given the nature of the fence, it did not show the necessary objective intention. The Court attached no importance to other acts by the squatter, including the installation of a Portakabin, the erection of a temporary “trespassers will be prosecuted” sign, grazing and feeding of sheep, the removal of rubbish, allowing acquaintances to shoot on the land and the use of the land as a children’s play area. The additional acts were intermittent and did not establish continuous possession.
(3) In Smith v Waterman (above), the main act of possession on which the squatter relied was the erection of a fence and the installation and locking of a five-bar gate. Having noted that the squatter’s animus must be demonstrated unequivocally, Blackburne J stated that:
“It is because of its equivocal nature that an act such as repairing the fencing around a field in which the trespasser is grazing his animals is usually regarded as an insufficient manifestation of an intention to possess: the fence?repairs may be done as much to ensure that the animals are kept in the field as to prevent others from gaining entry into that field. It explains why a padlocked gate, if the gate is the customary means of access to a field, is usually a fairly sure indicator of such an intention: it ordinarily signifies an intention to exclude persons (including, therefore, the true owner) from coming on to the land in question.”
(4) In Chambers v London Borough of Havering [2011] EWCA Civ 1576, Lewison LJ reconciled the authorities which the Adverse Possession (2nd ed) considered were in conflict at paragraph 13.17,[4] and explained at paragraph [40] that
Minchington was not cited in Inglewood Investments. I do not consider, however, that Minchington and Inglewood Investments are inconsistent with one another on the significance of fencing and show a different approach in principle. Each case turns on its own particular facts. In a case of adverse possession, where the defendant relies upon the existence of fencing, the Judge will plainly have to consider its significance. In some cases, it will be cogent evidence, perhaps the most cogent evidence, of adverse possession where its effect is wholly to exclude the paper owner, even if it was erected to keep animals inside rather than to exclude people, including the paper owner. In other cases, when considered in the context of the evidence as a whole, fencing may be not be inconsistent with the absence of actual possession and of an intention to possess on the defendant's part, even where the fencing physically excludes the paper owner.
Sub-Issue Three: Modest Acts
(1) In Bissessar v Lall [2004] UKPC 48, the Privy Council decided that the squatter had established title by adverse possession to six acres of rough agricultural land which had been used to grow a variety of crops, and on which some cows were kept. Houses had been erected along the frontage, though the boundaries were largely unmarked. Although the finding, based principally on cultivation, that there had been adverse possession on the facts was not “inevitable”, but was one which it had been permissible for the Court of Appeal to draw, emphasising that Court’s local knowledge. It is therefore considered that, insofar as Bissessar might be thought to be a wider application of adverse possession on the basis of cultivation, that case turned on its own special facts.
(2) In Chapman v Godinn Properties Ltd [2005] EWCA Civ 941, trimming of vegetation on a verge was treated as an act of possession, but only in conjunction with other works to the land, such as the erection of walls and installation two entrances over it.
(3) In Hicks Development Ltd v Chaplin [2007] E.W.H.C. 141 (Ch), the squatters agreed with the paper owner, a development company, that a fence would be erected to divide a strip of land covered in vegetation from the development land. The maintained the strip in a “rustic” (as opposed to “manicured”) condition. The Adjudicator to the Land Registry found that they had been in exclusive possession, which finding was not reversed by Briggs J on appeal.
(4) In J Alston & Sons Ltd v BOCM Chemicals Ltd, the squatter, a former licensee of a field, grew crops on it after expiry of the licence. The extent of the cultivation showed the extent of the land claimed, and his use as such amounted to full custody and control of the land.
Issue Two: Illegality
Illegality issues arise in relation to activities on commons, village greens, highways and other public rights (such as navigation on tidal waters).
The origin of the illegality defence may be traced to Lord Mansfield in Holman v Johnson (1775) 1 Cowp 341, 343, where he stated that “No court will lend its aid to a man who founds his cause of action upon an immoral or an illegal act.”
He went on to explain that the rule was one of public policy:
“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. It is upon that ground the court goes; not for the sake of the defendant, but because they will not lend their aid to such a plaintiff. So if the plaintiff and defendant were to change sides, and the defendant was to bring his action against the plaintiff, the latter would then have the advantage of it; for where both are equally in fault, potior est conditio defendentis.”
The tension in the cases is between two general approaches to the illegality question. The Courts initially applied a very open-textured “public conscience” approach to the defence, which brought with the merits of flexibility the usual vice of uncertainty. This approach was disavowed in the House of Lords by the majority in Tinsley v Milligan [1994] 1 AC 340. The facts of that case were that the parties had arranged for property to be purchased and held in the sole name of one of them, so that the other could make a fraudulent benefits claim. The non-owning party then wished to reclaim her share of the property when their relationship ended. The majority decided that she succeeded on the grounds of resulting trust, and that this basis of claim did not need to rely on any illegality as it operated independently from it. The non-owning party would, however, have failed had their relationship been one to which the presumption of advancement applied.[5] Lord Browne-Wilkinson noted the arbitrary difference in result, which he explained on the basis that illegality was a procedural bar to advancing a claim, as opposed to a substantive part of the law. The majority decision has been the subject of criticism, including by the Law Commission,[6] and one can discern in later cases, including Bakewell Management Ltd v Brandwood [2004] 2 AC 519 (a case concerning prescription and easements) and Gray v Thames Trains Ltd [2009] AC 1339 (a case concerning personal injury damages), a departure from that mechanical approach. Those cases appear to stand for the wider proposition that a claim based on relevant turpitude might be allowed provided that the claim did not run counter to the policy of the rule infringed. This mechanical and arbitrary operation of the defence led to the softening of that test in Stone & Rolls Ltd v Moore Stephens [2009] AC 1391. The approach in Stone & Rolls was more open textured, with Lord Phillips of Worth Matravers (at paragraph [25]) stating as follows:
"I do not believe… that it is right to proceed on the basis that the reliance test can automatically be applied as a rule of thumb. It is necessary to give consideration to the policy underlying ex turpi causa in order to decide whether this defence is bound to defeat [the company's] claim."
Accordingly, the mere fact that illegality formed part of the facts needed to be pleaded to constitute the cause of action was no longer sufficient to bar a claim as founded on illegality. It further had to be considered whether the need to rely on illegal conduct engaged the policy considerations underlying that principle. This point was required to be decided by the Supreme Court in Hounga v Allen [2014] UKSC 47. In Hounga, a young woman, H, had been brought into the United Kingdom, had participated in obtaining a visa on a false basis, and then entered into an employment contract. All of that, including the employment contract, was illegal. In the course of her employment, the young woman was subjected to discrimination amounting to a statutory tort. Her cause of action did not, therefore, originate out of the employment contract - which was “merely” a piece of background and was the context of and opportunity for the discrimination - but out of separate conduct sounding in tort.
Lord Wilson considered it most helpful to ask questions to ascertain whether the turpitude in that case was relevant to her claim in tort (paragraph [42]):
“[i]t 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?"
Lord Wilson derived a four-stage process for testing whether H was entitled to recover damages for discrimination suffered whilst illegally employed:
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 upon 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 upon 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.
The law was then thrown into a degree of confusion by the later Supreme Court decision in Les Laboratoires Servier & Anor v Apotex Inc & Ors [2014] UKSC 55. Hounga was not referred to extensively in that judgment, which principally concerned the question of whether merely unlawful conduct - as opposed to illegal or quasi-criminal conduct (as explained in the judgment of Lord Sumption at [23] - [29] - engaged the ex turpi cause defence. This was decisively rejected by the Supreme Court. The judgment of Lord Sumption for the majority (at [19] - [20]) can, however, be read as following the Tinsley approach to illegality, without taking into account the change in approach which formed the basis of the Hounga decision. Despite the authority of the statement, the Les Laboratories Servier analysis was obiter given that the Supreme Court decided that there was no turpitude of the appropriate character to engage the illegality defence in the first place.
This unsatisfactory position has been revisited twice more by the Supreme Court. The first occasion was in Jetivia SA & Anor v Bilta (UK) Ltd & Ors [2015] UKSC 23 the fact of the controversy relating to the scope of the illegality defence was noted, but the Supreme Court noted that the issue was not relevant to that appeal and left the matter open to be heard by the Supreme Court when the point in fact arose. It was noted that there was an argument that neither the Hounga nor the Les Laboratoires Servier approach was necessary for the decision in either appeal, though its relevance was greater in Hounga. The Jetivia appeal was disposed of on a narrower basis. Hounga was, however, preferred by Sales LJ in Best v Chief Land Registrar [2015] EWCA Civ 17 (a case concerned with the illegality defence in the adverse possession context, of which more below), and was applied at Hniazdzilau v Vajgel & ors [2016] EWHC 15 (Ch).
The second occasion was in Patel v Mirza [2016] UKSC 42, where the correctness of approach was squarely in issue. The point was considered by a panel of nine judges. The majority judgment was that of Lord Toulson, with whom four other members of the panel agreed.[7] Mr Patel provided Mr Mirza with money so that Mr Mirza could invest it, using insider information. The arrangement amounted to a criminal conspiracy. Mr Mirza did not in fact invest the money, and did not pay it back either. Reviewing the cases, Lord Toulson favoured a more open-textured approach informed by Hounga (and it is to be noted that Lord Wilson was also in the majority in Patel). Having reviewed the broad maxims in Holman v Johnson, he went on the state as follows:
[120] The essential rationale of the illegality doctrine is that it would be contrary to the public interest to enforce a claim if to do so would be harmful to the integrity of the legal system (or, possibly, certain aspects of public morality, the boundaries of which have never been made entirely clear and which do not arise for consideration in this case). In assessing whether the public interest would be harmed in that way, it is necessary a) to consider the underlying purpose of the prohibition which has been transgressed and whether that purpose will be enhanced by denial of the claim, b) to consider any other relevant public policy on which the denial of the claim may have an impact and c) to consider whether denial of the claim would be a proportionate response to the illegality, bearing in mind that punishment is a matter for the criminal courts. Within that framework, various factors may be relevant, but it would be a mistake to suggest that the court is free to decide a case in an undisciplined way. The public interest is best served by a principled and transparent assessment of the considerations identified, rather by than the application of a formal approach capable of producing results which may appear arbitrary, unjust or disproportionate.
Best v Chief Land Registrar [2015] EWCA Civ 17 was decided after Hounga and Les Laboratoires Servier, but before Patel. The Supreme Court majority in Patel endorsed Sales LJ’s judgment as exemplifying the majority approach and as correctly applying the Hounga approach (see Patel at [78], [79] and [103]). Best concerned the application of the recent offence of criminal squatting in residential property and its impact on adverse possession. The offence was introduced by section 144 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (“LASPOA"). 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".
The Hounga principles when applied to section 144 then operated as follows:
64. [The Appellant …] 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 [Counsel for the Appellant] 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 [Counsel for the Respondent] 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.
65. 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.
66. 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.
67 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.
68 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.
69 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.
70 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).
71 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.
72 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.
73 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.
74 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, 8th 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.
75 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.
Although Sales LJ was clear that he was adopting a “narrower”, and not a wide, approach to illegality, and although his judgment is an assessment of section 144 (and not any other criminal offence) against the policies behind adverse possession, it would appear from his reliance on the cases at paragraph [64] of his judgment, and the width of the policy grounds supporting adverse possession, that it will difficult in future to argue that the illegality in the acts of possession relied upon by the squatter himself are to be excluded on the basis of the ex turpi causa defence. The examples which are cited of possibly relevant illegality on the part of the squatter are all examples of illegal conduct intended to conceal or avoid the consequences of the offences committed, and are not acts of possession. The powerful points made by the dissenting judgments in Patel cannot, however, be ignored. It may well transpire that the law has been rendered less predictable, and it is conceivable that arguments might be advanced that statutory provisions rendering conduct criminal specifically in order to preserve some public amenity by keeping it free from obstruction - like a highway, village green or a burial ground - might be treated differently from section 144, the policy focus of which was rather different.
The latter point derives some support from Best itself. This is because nothing in Best suggests R (Smith) v The Land Registry [2009] EWHC 328 (Admin). What Best decided about Smith was (1) that nothing in that latter case could be used to divine the intention of Parliament in relation to section 144, and that Smith did not set up some general rule of law, and (2) that Smith concerned a different statutory provision - section 137 of the Highways Act 1980, which restricted how a particular kind of land - highway - was to be used generally:
[91] 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.
[92] 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.
It will therefore remain the case that the policy of each individual Act will need to be looked at. It may be that enactments which do not merely render a particular form of conduct by a particular class of individuals illegal, but which have the policy of preserving land in a particular state (for instance, unenclosed) for some public purpose, will continue to form the basis of an illegality defence.
OLIVER RADLEY-GARDNER
25TH OCTOBER 2016
[1] Your? His? Her? Their?
[2] I will not fully go down the rabbit hole in relation to the rules that apply.
[3] This is a selection of the issues that have cropped up in the course of updating S Jourdan QC and O Radley-Gardner’s Adverse Possession (2nd ed). They are by no means the only issues – you should also take a look at Martin Dray’s paper, https://www.falcon-chambers.co.uk/uploads/docs/section9/MD_Adverse_Possession.pdf
[4] The Hounslow London Borough Council v Minchinton approach was applied in Harber v London Borough of Havering REF/2014/0543; and see Leinum v Crawford REF/2014/0790.
[5] Collier v Collier [2002] EWCA 1095 illustrates that arbitrarinesss.
[6] The Illegality Defence: A Consultative Report (LCCP 189); followed by the 2010 Report, The Illegality Defence (Law Com 320).
[7] Lord Neuberger expressed himself to be in general agreement with the overall multi-factorial approach adopted by Lord Toulson. The minority - Lords Clark, Mance and Sumption, preferred the reliance test and regarded the multi-factorial approach as too vague,