R (Best) v Chief Land Registrar  EWHC 1370 (Admin)
In 2002 Mr Best took possession of a property that he knew to be empty. He spent the next 10 years working on the property: making it watertight, putting down floorboards, painting, plastering etc. He then took up occupation of the property in 2012.
Soon after taking up residence, Mr Best made an application to the Land Registry to have the property register amended to show him as legal owner. His application was made in accordance with the Land Registration Act 2002, which allows a person who has been in adverse possession of registered land for 10 years or more to make such an application.
The usual process on receipt of a valid application involves the land registry sending out details of the application to the registered owner and giving him the chance to object. However, Mr Best did not even get this far as the Chief Land Registrar refused to accept Mr Best’s application as valid on the basis that Mr Best was not entitled to rely on his 10 years occupation as during this time he was committing a criminal offence and should not be allowed to rely on this period (following Section 144 Legal Aid, Sentencing and Punishment of Offenders Act which came into effect on 01 September 2012.
On receiving notice of the Land Registry’s rejection of him application, Mr Best sought judicial review of the decision arguing the decision was wrong on three grounds:
1. It was not parliament’s intention that Section 144 of the LASPOA should alter the position set out in the LRA 2002 or, if it was, the intention was that it should only alter the position if the legal owner would also have been committing a criminal offence if he had carried out the same act. Here clearly not.
2. He was not committing a criminal offence under Section 144 as this only criminalises “living in” residential premises and not other physical acts which are sufficient to rely on in making a claim for adverse possession. Mr Best asserted that he had begun living in the property until 2012, which was after the 10 year period. During the 10 years though he had undertaken acts such as securing doors and windows, which is a sufficient basis for an application for registration.
3. The Land Registry’s interpretation of Section 144 was in breach of Mr Best’s rights under Article 8 of the European Convention of Human Rights and/or Article 1 of Protocol I to the ECHR (the right to respect for one’s private and family life and the right to peaceful enjoyment of property).
The Court Decision
On considering the points raised by Mr Best, the court ruled that, although as a matter of public policy a person should not be allowed to derive benefit from criminal acts, that principle must be weighed up against other public policy interests. In this case, the question of whether a trespasser should be allowed to rely on his wrongdoing needed to considered against the conflicting interest that title should not be left uncertain when there had been a long period of possession to which no dispute had been raised. The Court decided that parliament would not have enacted Section 144 in the way that it did with the intention that the Act should amend the rules already in place regarding adverse possession. If this had been the intention then parliament would have made express provisions in LASPOA dealing with this.
The Court agreed that Mr Best had performed acts of adverse possession that would suffice for an application, such as possession through acts of repair, maintenance and exclusion.
The Court, however, found that the Land Registry’s decision was not incompatible with the ECHR.
The court granted permission to appeal so watch this space. Meanwhile read the whole case here.