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Living outside the system? The (im)morality of urban squatting after the Land Registration Act 2002

Published online by Cambridge University Press:  02 January 2018

Neil Cobb  and
Lorna Fox
Neil Cobb
Affiliation:
Department of Law, Durham University
Lorna Fox
Affiliation:
Department of Law, Durham University
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Abstract

The Land Registration Act 2002 (LRA 2002) has effectively curtailed the law permitting the acquisition of title through adverse possession in relation to most types of adverse possessor, including the paradigmatic urban squatter. While the traditional principles for the acquisition of title through adverse possession enabled a squatter to secure rights in land ‘automatically’ after 12 years, under the LRA 2002 an urban squatter seeking to defend their possession of land in this way must now apply to the Land Registry, who will serve a notice on the registered proprietor alerting them to his or her presence. This procedure provides the landowner with an opportunity to recover possession of the property before the squatter’s occupation has given rise to any claim on the title to the land. On the whole, these reforms have been presented as, and accepted as being, wholly justified in the context of a modern regime of ‘title by registration’. This paper argues, however, that the reform of adverse possession also implements a contentious moral agenda in relation to advertent squatters and to absent landowners. While these provisions of the LRA 2002 will have important practical and philosophical consequences, the Law Commission has attempted to close off any prospect of further debate on the subject, without explicit consideration of current social and housing issues associated with urban squatting, or of the matrix of moral issues at stake in such cases.

Type
Research Article
Information
Legal Studies , Volume 27 , Issue 2 , June 2007 , pp. 236 - 260
Copyright
Copyright © Society of Legal Scholars 2007

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References

1. McPhail v Persons Unknown [1973] Ch 447 at 456B.

2. In limited circumstances, squatting is indirectly criminalised through the Criminal Justice and Public Order Act 1994.

3. Under Pt 55 of the Civil Procedure Rules 1998, SI 1998/3132.

4. The press – from broadsheet to tabloid, and from news websites to ‘topical chat shows’ – often report on stories involving squatting; see, eg, O Koster ‘Farmer takes revenge on squatte…. with a forklift’ Daily Mail 1 September 2006, in which a farmer lifted a car, and then a caravan in which the squatter was sleeping, with a fork-lift truck and moved them off his land; 51 ‘blog’ responses to this story were unanimously approving of the farmer’s actions; J Coles ‘Sun man evicts squat pair’ The Sun 23 July 2004; P Simms ‘Family homeless after Polish builders turn squatters’ Daily Mail 9 June 2006; C Hartley ‘Squatters wreck mansion’ The Sun 1 September 2006; T Kelly ‘Ravers seize £10 million house’ Daily Mail 31 August 2006. Other news stories portraying squatters in a negative light have focused specifically on adverse possession. These include D Smith ‘Squatters to keep £1 million house’ The Guardian 5 April 2004; Squatter’s Tidy Profit (Tuesday, 25 April 2000), available at http://news.bbc.co.uk/1/hi/uk/725913.stm; C Gysin ‘Squatter becomes owner of £100,000 flat’ Daily Mail 15 June 2001; C Dyer ‘Britain’s biggest ever land-grab’ The Guardian 9 July 2002; ‘Squatters handed £9 million five-story Hampstead home’ Daily Mail 28 September 2006.

5. For a discussion of the morality of adverse possession in the English context, see, eg, Auchmuty, R Not just a good children’s story: a tribute to adverse possession 2004 Conv 293.Google Scholar

6. See, eg, Merrill, TW Property rules, liability rules, and adverse possession’ (1984) 79 Northwestern University Law Review 1122 Google Scholar; ; ; ; ; ; ; ; ;

7. These proposals were intended, largely, to pave the way for e-conveyancing: Law Commission and Registry, Hm Land Land Registration for the Twenty-First Century: A Consultative Document Law Com No 254 (London: TSO, 1998 Google Scholar). A pilot for the e-conveyancing project will be launched in October 2007; see, generally, http://www.landregistry.gov.uk/e-conveyancing/.

8. See below, s 1.

9. LRA 2002, Sch 6, para 1(1).

10. Ibid, Sch 6, para 2.

11. Ibid, Sch 6, para 3. Registration will only proceed, notwithstanding objection, if the squatter can establish an estoppel in his or her favour; an entitlement to be registered as proprietor by some other reason, eg under a will or intestacy, or by virtue of an estate contract; or if the matter is a boundary dispute: ibid, Sch 6, para 5.

12. Law Commission Third Report on Land Registration Law Com No 158 (London: HMSO, 1987) para 2.36.

13. Law Commission Land Registration for the Twenty-First Century: A Conveyancing Revolution Law Com No 271 (London: TSO, 2001) para 14.4.

14. ‘If the reports in the press are any kind of barometer, there would appear to be considerable public disquiet with the way that the law on adverse possession presently operates’: ibid.

15. Dixon, M The reform of property law and the Land Registration Act 2002: a risk assessment 2003 Conv 136 Google Scholar at 150.

16. Squatters in forgotten properties have made a number of high-profile successful claims for adverse possession in recent years: see, eg, Dyer, above n 4; Smith, above n 4.

17. The Law Commission specifically referred to cases involving ‘land owned by local authorities, so that the loss resulting from a successful claim has fallen on the public purse’: above n 13, para 14.4.

18. Rhys, O Adverse possession, human rights and judicial heresy 2002 Conv 470.Google Scholar

19. Dixon, M, ‘Adverse possession and human rights 2005 Conv 345 Google Scholar at 351. See also for further criticism of the reforms set out in the LRA 2002.

20. M Dixon, above n 15, at 151–152.

21. See above n 6.

22. See below, s 3.

23. See above nn 5–6. In a recent issue of this journal, Brice Dickson, discussing the decision of JA Pye (Oxford) Ltd v UK (Application No 44302/02) 15 November 2005 in the European Court of Human Rights, noted that ‘judges in England have always accepted that the English law on adverse possession strikes a fair balance between the rights of squatters, on the one hand, and the rights of dispossessed landowners, on the other’: Dickson, B Britain’s Law Lords and human rights’ (2006) 26 LS 329 Google Scholar at 340.

24. For example, in Australia, where the Torrens system of title registration originated, it is notable that ‘[e]xcepting the Northern Territory and ACT, which prohibit the acquisition of title to registered land by adverse possession, all Australasian jurisdictions permit an occupier to acquire a possessory title capable of registration and, upon registration, gain the advantages of the paramountcy and conclusive evidence provisions of the relevant registered land title statutes’: Park, M, Ting, L and Williamson, I Adverse possession of Torrens land’ (1998) 72 Law Institute Journal 77.Google Scholar

25. Gray, KJ and Gray, SF Elements of Land Law (Oxford: Oxford University Press, 4th edn, 2005 Google Scholar) p 377.

26. Gray and Gray have described ‘the ultimate achievement of the Land Registration Act 2002 [as] its ruthless maximisation of rational legal order, an aim which is symbolised by the statutory vision of an electronic register of virtually indefeasible titles, transactable by automated dealings and guaranteed by the state. Under this tightly organised regime, estate ownership, as constituted by the register record, becomes a heavily protected phenomenon, leaving little room for the operation “off the record” of some ancient and pragmatic principle of long possession’: ibid, p 364.

27. Law Com No 254, above n 7. See also Law Com No 271, above n 13.

28. Law Com No 254, above n 7, para 10.2.

29. Law Com No 271, above n 13, para 14.3.

30. Law Com No 254, above n 7, para 10.11.

31. Ibid, para 10.2.

32. Ibid, paras 10.6–10.9.

33. Ibid, para 10.13.

34. Ibid, para 10.10. It is, however, suggested below that the Law Commission failed to consider the full implications of its proposals for the saleability of property; see below, s 4.

35. Law Com No 271, above n 13, para 14.7.

36. Ibid, para 10.5

37. The requirement of an intention to deprive permanently also imports the assumption that an urban squatter squats for title rather than merely enjoying the use of the land for the time being.

38. Law Com No 271, above n 13, para 10.13.

39. The decision of the Court of Appeal in Prudential Assurance Co Ltd v Waterloo Real Estate Inc[1999] 2 EGLR 85 at 87 re-affirmed the irrelevance of the distinction between innocent and wilful trespass for the purposes of animus possidendi in English law. However, this distinction is a major theme in academic commentary and judicial reasoning in the USA – see, eg, Helmholz, RH Adverse possession and subjective intent’ (1983) 61 Washington University Law Quarterly 331 Google Scholar– and underpins the law in many civil law jurisdictions.

40. This policy approach was also reinforced in the decision of the House of Lords in JA Pye (Oxford) Ltd v Graham [2002] UKHL 30, [2003] 1 AC 419 when Lord Hope of Craighead commented that ‘[t]he unfairness of the old regime which this case has demonstrated lies not in the absence of compensation, although that is an important factor, but in the lack of safeguards against oversight or inadvertence on the part of the registered proprietor’: ibid, at 447 per Lord Hope of Craighead.

41. Law Com No 254, above n 7, para 10.6.

42. Reeve, K and Coward, S Hidden Homelessness, Life on the Margins: The Experiences of Homeless People Living in Squats (London: Crisis/Countryside Agency, 2004 Google Scholar) p 4.

43. Law Com No 254, above n 7, para 4.13. The LRA 2002 also removed freestanding overriding status from the rights of adverse possessors who had acquired equitable title before 13 October 2003 but who had not yet registered to complete their legal title. These equitable interests are now only overriding if the adverse possessor is in actual occupation of the land, thus bringing their claim under the umbrella of Sch 3, para 2. Dixon has noted that this position ‘further protects a purchaser from undiscoverable and unregistered rights; and it confirms the idea that in an effective registration system possession alone should not generate title. It also supports – probably unintentionally – one of the justifications for adverse possession by disapplying the claim of anyone who is not utilising the land economically or socially’: Dixon, above n 15, at 144. Furthermore, the interests of persons in actual occupation are, under para 2, now only overriding if they would have been ‘obvious on a reasonably careful inspection of the land’: para 2(c)(i). Similarly, in relation to those legal easements which are now overriding, the idea that the easements were ‘obvious on a reasonably careful inspection of the land’ is also added through para 3(1)(b).

44. Of course, this can also happen on a much smaller scale, although inadvertently, when the squatter and the landowner are mistaken as to boundary lines.

45. Law Com No 254, above n 7, para 10.19.

46. Friend, A The post-war squatters’ in Wates, N and Wolmar, C (eds) Squatting: The Real Story (London: Bay Leaf Books, 1980 Google Scholar); ). See also McPhail v Persons Unknown[1973] Ch 447; Woodcock v South West Electricity Board[1975] 1 WLR 983; R v Wandsworth County Court, ex p Wandsworth LBC[1975] 1 WLR 1314.

47. S Busch ‘My place or yours?’ The Independent 3 February 2005.

48. Department of the Environment Consultation Paper on Squatting (London: HMSO, 1975).

49. See also Pritchard, AM Squatters – the law and the mythology 1976 Conv 255.Google Scholar

50. Wates and Wolmar, above n 46. Some local government bodies seem to have had a more ambivalent attitude; see, eg, the mass of squatters that were able to occupy properties belonging to Lambeth council for many years, with the council’s knowledge, discussed further below.

51. See above n 4 and associated text.

52. For a recent example of the media’s portrayal of urban squatters, see V Dodd ‘The party’s over for squatters in £14 million house’ The Guardian, September 1 2006.

53. Wates and Wolmar, above n 46, p 3.

54. Home Office Squatting: A Home Office Consultation Paper (London: HMSO, 1991 Google Scholar) paras 5 and 62.

55. Ibid; see also Lord Chancellor’s Department New Procedures to Combat Squatting in Houses, Shops and Other Buildings: A Consultation Paper on Proposals for Rule Changes (London: HMSO, 1994).Google Scholar

56. Rhys, above n 18, at 471. One example of a judicial technique to defeat squatters was the doctrine of ‘implied licence’; see Leigh v Jack (1879) 5 Ex D 264 (CA); Wallis’s Holiday Camp v Shell-Max [1975] 1 QB 94 (CA). For a more recent illustration of judicial creativity in this vein, see Beaulane Properties Limited v Palmer [2005] EWHC 817 (ChD), [2006] Ch 79.

57. Of course, while used here as an analogy, the criminal defence of necessity has not worked to protect squatters in practice. In Southwark London Borough Council v Williams [1971] 1 Ch 734, the Court of Appeal famously held that necessity was no defence to trespass by homeless people squatting in empty council houses during a severe housing shortage in London in the 1970s.

58. Reeve and Coward, above n 42.

59. Office for National Statistics Social Trends 36 (London: Office for National Statistics, 2006) p 158.Google ScholarPubMed

60. Ibid; statistics from Housing Statistics: Projections of Households in England 2021 (London: DETR, 1999).

61. Ibid; statistics from More than a Roof: A Report into Tackling Homelessness (London: ODPM, 2002).

62. Ibid.

63. Information provided by local authorities to the Department for Transport, Local Government and the Regions (DTLR) on Housing Investment Programme returns; see the website available at http://www.emptyhomes.com.

64. See, eg, Office of the Deputy Prime Minister Empty Homes: Temporary Management, Lasting Solutions: A Consultation Paper (London: TSO, May 2003 Google Scholar);

65. Home Office, above n 54, para 9.

66. Ibid, para 10.

67. From a peak of 30% of all housing in the UK, local authorities now control just 11%; see Department for Local Communities and the Environment statistics, available at http://www.communities.gov.uk/pub/7/Table101_id1156007.xls.

68. Cant, D Squatting and Private Property Rights (London: UCL, 1978).Google Scholar

69. Statistics are based on information provided by local authorities to DTLR on Housing Investment Programme returns; see the website available at http://www.emptyhomes.com/resources/statistics/statistics.htm#2004.

70. Ibid. In 2005 there were 585,539 private properties lying vacant, compared to 48,594 local authority properties. These statistics do not include properties owned by registered social landlords or other publicly owned homes.

71. Cant, above n 68.

72. Pritchard, above n 49.

73. See, eg, the recent case of Family Housing Association v Donellan [2002] 1 P&CR 34, which highlighted the vulnerability of private sector landlords in relation to adverse possession.

74. As a result of the right-to-buy legislation and large-scale voluntary transfers (LSVT) to registered social landlords.

75. This appears to be the practical conclusion reached by the authors of the latest edition of the Squatters Handbook (London: Advisory Service for Squatters, 12th edn, 2004) p 10.

76. See above nn 68–70 and associated text.

77. Dixon, above n 15, at 153.

78. Locke, J Second Treatise on Government (Oxford: Blackwell, 1966).Google Scholar

79. Ibid, p 336. For a critique of this approach, see Rose, CM Possession as the origin of property’ (1985) 52 University of Chicago Law Review 73.CrossRefGoogle Scholar

80. Rose, for instance, has implied that, in certain circumstances, neglect of property by a landowner may allow a squatter to invest greater labour in the land, justifying the transfer of property through adverse possession: ibid, at 79.

81. See, eg, Lambeth LBC v Archangel [2002] 1 P&CR 18, in which Mr Archangel turned his squatted property into the premises of an organisation called Rehab II, the purpose of which was the rehabilitation of ex-offenders, some of whom had lived at the property. Part of the evidence used against him when he sought title was a letter he wrote to Lambeth Council detailing a refurbishment project that he was undertaking, which was used to argue that Archangel acknowledged that Lambeth had a superior right to the property.

82. See, eg, Leigh v Jack (1879) 5 Ex D 264; Wallis & Cayton Bay Holiday Camp Ltd v Shell-Max & BP Ltd [1975] QB 94; Powell v McFarlane (1977) 38 P&CR 452 (for criticism of this approach). This ‘implied licence’ theory has been rejected and removed by statute (Limitation Act 1980, Sch 1, para 8(4)), which provided that a licence would not be implied due solely to the fact that the squatter’s occupation was not inconsistent with the landowner’s plans for future use of the property. See Buckingham County Council v Moran [1990] Ch 623; JA Pye (Oxford) Ltd v Graham, above n 40.

83. Above n 56.

84. See above nn 63–64 and associated text.

85. See Empty Property, above n 64.

86. See Hegel, GWF (edited by AW Wood, translated by HB Nisbet) Elements of the Philosophy of Right (Cambridge: Cambridge University Press, 1991) pp 73–102.Google Scholar

87. Radin, MJ Property and personhood’ (1982) 34 Stanford Law Review 957.CrossRefGoogle Scholar

88. Radin, MJ Reinterpreting Property (Chicago: University of Chicago Press, 1993) p 35.Google Scholar

89. Radin described different forms of property as being located on a continuum, ranging from property that is constitutive of personhood (described as ‘personal property’) to property that carries no meaning beyond its capital value (described as ‘fungible property’). For a detailed discussion of the applicability of ‘property for personhood’ in the context of the home, see Fox, L Conceptualising Home: Theories, Laws and Policies (Oxford: Hart Publishing, 2007 Google Scholar) ch 6.

90. Hegel, above n 86, p 91 (s 62).

91. Radin, above n 88, p 44.

92. Ibid.

93. Ibid, p 54.

94. Stake, above n 6, at 2456. Note, however, Posner’s argument that ‘[o]ver time, a person becomes attached to property that he regards as his own, and the deprivation of the property would be wrenching. Over the same time, a person loses attachment to property that he regards as no longer his own, and the restoration of the property would cause only moderate pleasure’: Posner, R Economic Analysis of Law (New York: Aspen Law and Business, 5th edn, 1998 Google Scholar) pp 89–90.

95. Posner, ibid.

96. For example, in Ellis v Lambeth London Borough Council (1999) 32 HLR 596.

97. Of course, Stake also challenges this model for the apparent licensing of theft on grounds of an individual’s relative poverty, together with the increases, once again, in costs of monitoring and protection of property: above n 6, at 2458.

98. Law Com No 271, above n 13, para 2.70.

99. Ibid.

100. Fennell, above n 6, at 1081.

101. Ibid.

102. See, eg, Karp, JP A private property duty of stewardship: changing our land ethic’ (1993) 23 Environmental Law 735 Google Scholar. ), ch 7.

103. Karp, ibid.

104. Empty Homes, above n 64, p 47.

105. See Housing Act 2004, Ch 2 and Office of the Deputy Prime Minister Empty Dwelling Management Orders: Consultation on Secondary Legislation (London: TSO, 2005).Google Scholar

106. See Dixon, above n 15.

107. In Pye v UK, above n 23, the dissenting judges identify the varying degrees of supervision possible for various different types of landowner when they claim that ‘[t]he real “fault” in this case, if there has been any, lies with the applicant companies, rather than the Government. It has to be born in mind that the applicant company was not a private individual or an ordinary company with, one could assume, limited knowledge on relevant real estate legislation. They were specialised professional real estate developers and such a company had or should have had full knowledge about relevant legislation and the duties involved. They should have had full access to the legal advice if need be and cannot claim to be ignorant as to the adverse effects of the limitation legislation. It should have been known to the applicants from the very beginning that their property right was subject to restrictions, qualifications or limitations imposed by the pre-existing legal requirements of the Limitation Act. The Government have done no more than continue to operate a mechanism which, at the end of a relatively long limitation period, adjusts land ownership to reflect the fact that an action for adverse possession is time-barred’.

108. Perhaps the most recent and well-known example of oversight is that of Lambeth Borough Council, which brought a number of high-profile actions against long-term urban squatters whom they had failed to evict over a number of decades. See, eg, Lambeth London Borough Council v Archangel, above n 81; Lambeth London Borough Council v Bigden (2001) 33 HLR 43; Lambeth London Borough Council v Blackburn (2001) 82 P&CR 494.

109. See Dyer, above n 4. In all, 20 properties were reportedly ‘lost’ by Lambeth Borough Council.

110. Ellis v Lambeth London Borough Council (1999) 32 HLR 596. See also the case of the ‘Calthorpe Street Three’, who successfully acquired title to a Grade II listed townhouse, valued at £1 million: Smith, above n 4.

111. Except in the limited circumstances outlined above; see n 11 and associated text.

112. Green, K Citizens and squatters: under the surfaces of land law’ in Bright, S and Dewar, J (eds) Land Law: Themes and Perspectives (Oxford: Oxford University Press, 1998 Google Scholar) p 241.

113. Pritchard, above n 49, at 257.

114. Empty Property, above n 64, p 6.

115. Ibid, Ministerial Foreword, p 4.

116. Law Com No 254, above n 7, Foreword.

117. Law Com No 271, above n 13, para 2.70.