In the case of R (Best) v. Chief Land Registrar, the High Court has held that a criminal squatter was entitled to use his period of criminal squatting to acquire adverse possession of a residential property, this despite the criminal activity and the general proposition that a criminal should not profit from his crime (ex turpi causa).
Squatting in residential property was criminalised by section 144 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, though it remains only a civil offence in respect of commercial property. It has generally been considered that a criminal should not be able to benefit from his dishonourable activity in bringing a legal claim. Therefore, whilst it has been possible for squatters to acquire title to the property they are squatting in by way of adverse possession (i.e. possessing the property to the exclusion of all others and without consent), it had been considered that the criminalisation of residential squatting would prevent a squatter from becoming a title holder.
The High Court held otherwise. Its decision was based on a narrow application of section 144 ̶ the aim of the legislation being to allow residential property owners recourse to the criminal law in order to remove a squatter from their residential property in cases where the squatter has not been in occupation for any significant length of time. In the Court's view, the section was not aimed at preventing long-term squatters from acquiring title by way of adverse possession. This follows the policy argument that adverse possession helps to prevent sterilisation of property where the owner cannot be identified and someone else puts the property to good use.
The Court has granted permission to appeal. The views of the Court of Appeal on this matter will be most welcome. It will have to balance policy reasons against a criminal profiting from his action. Property is a valuable asset. It is unsettling to landowners to know that a criminal could rely on his criminality to deprive another of his property. The judgment of the Court of Appeal will be eagerly anticipated. Landowners should ensure that they are fully aware of the extent of the property or properties that they own and who is in occupation of any part of them. If there is any risk that an occupier is not in possession with consent steps should be taken at the earliest opportunity to remedy the situation. This is especially the case in commercial property, where there is no criminal law protection against squatting. In light of this case, vigilance is also vital in respect of residential property.