Illegal Squatting & Adverse Possession

You can apply to the Land Registry to be registered as the owner of land if you’ve been squatting on it for 10 years (if the land is registered) or 12 years (if it’s not).

To succeed, you have to be able to prove various facts about how you’ve been occupying the land and follow certain procedures, which are summarised on this DirectGov page and set out in more detail in Land Registry Practice Guide 4 and Practice Guide 5.

Since 1 September 2012 however squatting in a residential building has been a criminal offence (see Squatting Now a Crime for more).

So can you base a claim to title by adverse possession on what is now a criminal activity?

The matter is untested in court, although as a matter of public policy you would expect the answer to be no and that seems to be the view the Land Registry is taking.

Alan Riley on PropertyPSL says the Land Registry is in the process of updating its adverse possession practice guides. He adds:

“It states that it will not proceed with an application for registration based on adverse possession unless, from the evidence presented to it, it is satisfied that the factual possession relied upon in support of the application did not constitute a criminal offence under section 144 Legal Aid, Sentencing and Punishment of Offenders Act 2012. However, it points out that the offence under section 144 is not retrospective, so that applications based exclusively on adverse possession before 1 September 2012 will be unaffected.”

An offence is committed under the new law 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.

What effect might this have on adverse possession claims based on occupation of a part of someone’s garden, for example caused by a moved boundary over many years?

Has any crime been committed?

Presumably not, provided no building has been occupied.

It’ll be interesting to see the revised Land Registry Practice Guides when they are issued and, over time, how these arguments are played out in adverse possession claims.