From 1 September 2012, squatting in a residential building has become a criminal offence under section 144 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012. An offence is committed if a person is in a residential building as a trespasser having entered it as a trespasser, the person knows or ought to know that he or she is a trespasser, and the person is living in the building or intends to live there for any period. A building is “residential” if it is designed or adapted, before the time of entry, for use as a place to live. The offence is committed whether entry was made as a trespasser before or after 1 September.
A question now arises: can such criminal activity be used as the basis for a claim to title by adverse possession? As a matter of public policy, one would expect not. Yet illegal occupation is as much possession of land as legal occupation, and we have seen in Bakewell Management Ltd v. Brandwood & Ors [2004] UKHL 14 how legal rights can be acquired despite illegality. In that case, a prescriptive right of way for a motor vehicle was permitted to be acquired over land even though the act of driving across private land without consent of the owner was an offence. However, in that case, the House of Lords was drawing a distinction between action that was illegal per se, and action that was illegal merely because it was done without permission of the land owner.
The matter of the criminal trespasser and adverse possession awaits consideration by a court. In Smith, R (on the application of) v Land Registry (Peterborough) [2009] EWHC 328 (Admin), Judge Pelling QC (at first instance – the matter not being dealt with on appeal) said that “whilst Bakewell is a case concerned with prescription and lost modern grant, not the acquisition of possessory title, in my judgment it supports by analogy the proposition that it is a legal impossibility for the claimant to claim adverse possession to part of a highway by reference to the illegal obstruction of it for a period of 12 years prior to the making of the claim contrary to the terms of primary legislation which makes such obstruction criminally and not merely tortiously unlawful.”
In Bakewell itself, Lord Walker commented that: “The present case [on prescriptive easements] is exceptional because of the unusual nature of the offence created by section 193(4) of the Law of Property Act 1925. It creates a criminal offence but it is, most unusually, an offence in respect of which the owner of the soil of the common has a dispensing power. It is common ground that that is the effect of the words “without lawful authority” in subsection (4)….In my opinion it is the landowner’s unfettered power of dispensing from criminal liability, exercisable at his own discretion and if he thinks fit for his own private profit, which is the key to the disposal of this appeal. Since a dispensing power of that sort is very unusual, it is unlikely to apply to many other cases of criminal illegality.”
There is no dispensing power in section 144 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012. Whilst the criminal trespasser could always be licensed at any time by the owner to prevent the crime from continuing (in the same was as a thief might be gifted a wallet?) he/she nevertheless remains a criminal unless and until licence is granted. On that basis, one would argue that illegality ought to prevent possession qualifying towards a title by adverse possession. But the matter remains to be addressed by the courts.