Investigating the relationship between criminal trespass under section 144 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 and the doctrine of adverse possession

: A comparative analysis of England & Wales and Canada

Abstract

The doctrine of adverse possession (‘AP’) tends to maintain a subtle and quiet existence within the area of property law. Its everyday use and role as a dispute resolution mechanism proves to be more than sufficient in handling boundary disputes that property owners may experience. This quiet role changes into a controversial topic as soon as an AP claim comes into question over a significant piece of land or a residential property.

There has been little doctrinal research on the relationship between the criminal offence of squatting in residential buildings and the property doctrine of AP. This project applies a doctrinal approach in investigating this relationship more fully and implements a Canadian comparative component to provide insight into the different attitudes towards AP in other common law jurisdictions. To successfully investigate this relationship, this project addresses four secondary questions: 

1. What are the current laws on AP in Alberta and what attempts have been made to abolish the doctrine? 
2. How has the law on AP developed in England & Wales given the political and media coverage on AP and squatting? 
3. To what extent does section 144 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (‘LASPOA’) harmoniously exist alongside the AP doctrine and, beyond the case of Best, how should their relationship be interpreted? 
4. What alternative recommendations and/or amendments can be made to section 144 LASPOA? Are these recommendations feasible?

While the English courts have clarified that the criminalisation of squatting bears no effect on AP applications under the civil law, inconsistencies remain between the two legal systems. Specifically, despite the superficial clarity in Best concerning the reconciliation between section 144 LASPOA and Schedule 6 of the Land Registration Act 2002, section 144 threatens to undermine AP’s productive social value. As such, this project advocates four alternative recommendations to the criminalisation of squatting in residential buildings, rendering this disharmony obsolete. These recommendations include the adoption of Albertan trespass law elements, the repeal of the squatting offence, and the implementation of amendments to the offence. This project aims to contribute to the area of property law by finding adequate solutions to this English inconsistency with the help of a Canadian perspective.

Date of Award	Dec 2021
Original language	English
Awarding Institution	Queen's University Belfast
Supervisor	Robin Hickey (Supervisor) & Heather Conway (Supervisor)