Even though squatting in residential property has been a criminal offence since 1 September 2012, the High Court in Best v The Chief Land Registrar decided that did not prevent the squatter from applying to register title to a house acquired by adverse possession of more than 12 years.

This decision sounds unexpected given firstly that under Section 144 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 anyone living in a residential building and who knows or ought to know that they are trespassing commits an offence and secondly that there is a general proposition that English courts will not enforce a cause of action which arises from illegal or immoral conduct. However the Court decided that if Parliament had intended Section 144 to affect the law on acquiring title to property by adverse possession it would have said so and provided for the consequences, which could otherwise be quite arbitrary. For example, Section 144 only criminalises "living" in the residential “building”. Squatting in the garden of a residential building, or adversely possessing the building for a purpose other than to live in it, are not offences and would not require the Land Registrar to reject an application.

The Court has given permission for an appeal but, whatever the outcome, the position for commercial premises remains unaltered as squatting in such property is not an offence. Landowners should monitor their holdings and to take action promptly if it appears that an occupier is in possession without their consent.