• Criminal Trespass and Adverse Possession
  • April 15, 2015
  • Law Firm: Dentons Canada LLP - Toronto Office
  • Best v. Chief Land Registrar [2015] EWCA Civ 17

    A criminal trespasser can acquire title to land via adverse possession. Yes, you read that correctly - a trespasser trespassing on land where it is a criminal offence to do so can still acquire title to that land as a result of the criminal activity.

    So much for the concept of the criminal not being rewarded for his criminal enterprise.

    The Court of Appeal upheld a first instance decision which allowed a squatter to obtain title to land by adverse possession, despite the trespass being a criminal offence. Squatting in residential properties is now a criminal offence pursuant to section 144 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (the Act) if the trespasser "lives" in a residential building (sadly squatting in a commercial property perversely remains a civil matter only).

    It was inevitable that a squatter would ultimately seek to obtain title by adverse possession in reliance on part of the requisite period to acquire title adversely being criminal. That case has now been heard and it is of concern, not just for landowners, but also for those that believe in the concept of a criminal not benefitting from his crime. There is an uncomfortable wider issue here. The situation is further complicated by the concept of land utility and the potential public benefit to be gained by allowing a system of adverse possession to ensure land is not abandoned or sterilised.

    In Best, the Court sided with the criminal trespasser. The Court held that Parliament did not intend for the Act to adversely affect adverse possession. The Court would also not be drawn into a debate as to how the adverse possession would dovetail into the Proceeds of Crime Act 2002 and the interesting issues thrown up by that regime and how it might apply to criminal trespass and adverse possession.

    It is fair to say that the limited criminalisation of trespass threw a cat amongst the pigeons in respect of how it would apply to adverse possession. The Court of Appeal has given a very clear indication that it is not to impact on adverse possession. Accordingly, a squatter can live as a criminal trespasser in a property and then claim ownership of that property. And who says crime doesn't pay?