Adverse Possession and Criminality
Granted that the discussion on the morality of a particular law or legal principle warrants a
jurisprudential debate, in land law, such a dialogue materialises when one attempts to balance
the doctrine of adverse possession with the crime of squatting.
To provide some context, adverse possession is the occupation of land to which another
person has title with the intention of possessing it as one’s own 1. As further explained by
Martin Dixon, adverse possession is an expression of a policy that denies legal assistance to
those who sleep on their rights, as well as ensuring that there is an end to disputes. This is
supported in the case of Site Developments (Ferndown) Ltd v Cuthbury Ltd where the Court
relies on Schedule 1 of the Limitation Act 1980 to define adverse possession.
On the other end of the balancing scale, Section 144(1) of the Legal Aid, Sentencing and
Punishment of Offenders Act 2012, LASPOA 2012, created the offence of squatting in a
residential building. Herein lies the issue as arguments are made that rights (as granted by the
doctrine of adverse possession) should not be derived from a criminal act (squatting and
LASPOA 2012). Such a sentiment is encapsulated in the Latin maxim, ex turpi causa non
oritur action as well as cases such as Cleaver v Mutual Reserve Fund Life Association
where the husband took out a policy of life assurance for the benefit of his wife, who then
murdered him. It was held that the trust in favour of the wife was not enforced because of her
crime.
One persuasive response to the above argument is that the maxim of ex turpi causa non
oritur action should not have a blanket application but instead be applied according to the
context of the situation. As Martin Dixon highlights in ‘Criminal Squatting and Adverse
Possession: The Best Solution?’ the laws governing squatting, had never been intended to
trump over the doctrine of adverse possession. Echoing the same sentiment, Martin Dixon
cites the case of Best v Chief Land Registrar and Secretary of State for Justice.
Additionally, it was also explained as to why the case of R (Smith) v Land Registry is not
very applicable to the present discussion. Although in Smith, it has held that an unlawful act
(obstruction) could not support a claim to adverse possession of a highway, the decision was
based on the principle that a claim of adversely possessing a highway is unsustainable.
1
Even in the attempt to define adverse possession we see the debate as one can define it as land theft or the
rights of squatters.
1
Granted that the discussion on the morality of a particular law or legal principle warrants a
jurisprudential debate, in land law, such a dialogue materialises when one attempts to balance
the doctrine of adverse possession with the crime of squatting.
To provide some context, adverse possession is the occupation of land to which another
person has title with the intention of possessing it as one’s own 1. As further explained by
Martin Dixon, adverse possession is an expression of a policy that denies legal assistance to
those who sleep on their rights, as well as ensuring that there is an end to disputes. This is
supported in the case of Site Developments (Ferndown) Ltd v Cuthbury Ltd where the Court
relies on Schedule 1 of the Limitation Act 1980 to define adverse possession.
On the other end of the balancing scale, Section 144(1) of the Legal Aid, Sentencing and
Punishment of Offenders Act 2012, LASPOA 2012, created the offence of squatting in a
residential building. Herein lies the issue as arguments are made that rights (as granted by the
doctrine of adverse possession) should not be derived from a criminal act (squatting and
LASPOA 2012). Such a sentiment is encapsulated in the Latin maxim, ex turpi causa non
oritur action as well as cases such as Cleaver v Mutual Reserve Fund Life Association
where the husband took out a policy of life assurance for the benefit of his wife, who then
murdered him. It was held that the trust in favour of the wife was not enforced because of her
crime.
One persuasive response to the above argument is that the maxim of ex turpi causa non
oritur action should not have a blanket application but instead be applied according to the
context of the situation. As Martin Dixon highlights in ‘Criminal Squatting and Adverse
Possession: The Best Solution?’ the laws governing squatting, had never been intended to
trump over the doctrine of adverse possession. Echoing the same sentiment, Martin Dixon
cites the case of Best v Chief Land Registrar and Secretary of State for Justice.
Additionally, it was also explained as to why the case of R (Smith) v Land Registry is not
very applicable to the present discussion. Although in Smith, it has held that an unlawful act
(obstruction) could not support a claim to adverse possession of a highway, the decision was
based on the principle that a claim of adversely possessing a highway is unsustainable.
1
Even in the attempt to define adverse possession we see the debate as one can define it as land theft or the
rights of squatters.
1
