The Court of Appeal has upheld a decision that allowed a squatter to claim adverse possession of a residential property, even though squatting in residential premises is illegal.
It was criminalised in the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Section 144(1)) which came into force in September 2012.
The Sheriffs Office provides a legal update here:
In November 2012, Mr Best applied to the Land Registry for adverse possession of the property. The Land Registry turned his claim down because they said that the period of adverse possession included a criminal offence, therefore he could not rely on it in his claim. Mr Best disagreed and sought a judicial review.
In 2014, the court ruled that Mr Best could still rely on the occupation to make a claim, even though the occupation was illegal under Section 144(1).
The Court of Appeal has now upheld that decision – good news for Mr Best, less so for the previous property owner.
What is adverse possession
Adverse possession means that a squatter has factual possession of the land, with the necessary intention to possess and without the owner’s consent. Since the Land Registration Act 2002, a squatter who has had adverse possession of land for ten years can apply to be registered as the owner in place of the registered owner (in the Land Registry).
The registered owner will be notified of the application and will be able to oppose it. However, if he does not oppose it, then the squatter will become the registered owner.
If the application is rejected but the squatter remains in adverse possession for another two years, then he can apply again and will become the registered owner, regardless of whether his application is opposed.
You can read more about adverse possession in this Practice Guide.
Preventing adverse possession
If you have squatters, I would recommend you take steps to remove them promptly. In residential property, you can ask the Police to do this for you, as it is now a criminal offence.
If you have tenants who have stayed beyond their tenancy agreement, you could either repossess the property under an order for possession, or insist on a new tenancy agreement.
Ten years is a long time for a squatter to remain in a property, so hopefully instances where adverse possession of a residential property is claimed will be few and far between.
By David Carter of the Sheriffs Office
David is the CEO of The Sheriffs Office.