Squatting and Possession of a Residential Property
Section 144 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 came into force on 01.09.12.
The new offence will be committed where a person does all of the following:
- Is in a residential building as a trespasser, having entered it as a trespasser.
- Knows or ought to know that he or she is a trespasser.
- Is living in the building or intends to live there for any period.
The act applies whether the person entered the building as a trespasser before or after the commencement of section 144. However, the offence will not be committed by anyone holding over after the end of a lease or licence (even if they leave and re-enter the building). The offence is not applicable to commercial properties.
Landlord’s Possession Rights Are Now a Serious Matter
Alex Haigh, aged 21, is the first person to be prosecuted under the new act. He pleaded guilty and was sentenced to 12 weeks in prison. Previously, squatting was a civil matter and the authorities had limited powers to deal with squatters.
Squatters Can Take Possession from The Landlord
An analysis of the law of Adverse Possession is beyond the scope of this note. However, in a nutshell, squatters can apply to take the property as the paper owner of unregistered land if they have possessed it as a trespasser for 12 years. The same applies to registered land where the period of adverse possession relied on ends before 13.10.03. The principle is that there is a limit to the amount of time in which the paper owner should be able to claim back land he or she isn’t using. The law is based on the Limitation Act 1980. There are of course a number of qualifications, but such applications appear to be to have been frequently successful.
In the case of registered land, the process changed after 13.10.03 with the coming into force of the Land Registration Act 2002 on 13.10.03. The squatter only now needs to be in possession for 10 years, however, the registered owner and anyone else with sufficient interest must be given notice of the application and have a chance to object.
Although it is more difficult for a trespasser to obtain registered title to a property under the new act, it is far from impossible and furthermore, being entitled to make such an application can be a defence to an action for possession even where such application hasn’t actually been made, s. 98 Land Registration Act 2002.
The squatter’s possession must be unlawful for time to run in the squatter’s favour. A tenant or licensee’s occupation does not give rise to the potential loss of the landlord’s property for example. Non payment of rent does not normally amount to adverse possession, but there can be exceptions.
This is a complex and shifting area of law and advice is, in our view, essential.
The Squatting Tenant’s Possession Now Illegal
There is a legal maxim to the effect that courts will not enforce a cause of action which arises from illegal or immoral conduct, recently considered in Smith, R (on the application of) v The Land Registry (Peterborough Office)  EWHC 328 (Admin)
If it is illegal to squat, there is therefore a question as to whether the squatter should be able to obtain title to the property, based on their illegal act. In the light of the legal maxim referred to above and described by those who prefer Latin as ex turpi causa non oritur actio, the answer should be; absolutely not. However, in a decision by the House of Lords, Bakewell Management Limited (Respondents) v Brandwood and ors (Appellants)  UKHL 14, their Lordships appear to have qualified the maxim.
If the landowner can lawfully grant a right claimed (an easement in Bakewell) so that it wouldn’t be criminal, then the criminality actually involved in the absence of such a grant would not be such as to engage the principle of ex turpi causa non oritur actio. Would it then be right to say that, because the registered or paper title owner could consent to the squatter’s possession, the maxim would not be engaged? If yes, then the squatter would be able, in principle, to claim the property notwithstanding the illegality of the squatter’s possession.
There seems to be favour for the view that the illegality now involved in squatting would be sufficient to defeat a claim for adverse possession in spite of Bakewell. This is because Bakewell could be distinguished on the basis that the claim was based on prescription, which in turn is based on a fictional presumption that permission had been granted at some point in the past. In other words, permission is presumed to have been given. This is not the case in adverse possession.
The counter argument might be that the principle derived from Bakewell is that the criminality that is capable of being extinguished by the land owner is of a different quality to criminality per se. It is the ability of the landowner to grant the right, rather than the nature of the particular cause of action being employed, which disengages the ex turpi causa non oritur actio maxim.
No doubt there will be a helpful judgment in the not too distant future. Whether or not a squatter can claim possession of the Landlord’s property is an important point.
What can a Landlord do to Avoid A Tenant Claiming Adverse Possession?
It sounds obvious, but make sure you know what is going on at your property. If you have a squatter, do something about it. The obvious course of action is to begin proceedings for possession. However, consider also the option to grant a licence or tenancy instead, which will stop time running against the landlord. If the property in question is registered, do not fail to serve a counter notice if the squatter applies for registration.
Given the value of the asset in question, it is, in our view, vital that landlords seek advice.
As always, feedback and experience is welcomed.
Simon Vollans LL.M. (Bristol) Barrister and Solicitor – 05.11.12
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