Rashid v Nasrullah [2018] EWCA Civ 2685

The appellant (F) appealed against an order of the Upper Tribunal, made on the application of the respondent (M) who had subsequently died and was represented by his executor, directing the rectification of the land register so as to restore M’s name as the registered proprietor of certain land.   Until 1989, M had been the registered proprietor of the land in question.  In 1989, F’s father perpetrated a fraud whereby he procured both the transfer of the land to himself and his registration as its proprietor.  F was complicit in the fraud and in 1990 his father gifted the land to him and had him registered as its proprietor.   In 2011, M sought rectification of the register.  F objected arguing that he had been in adverse possession for over 20 years.

Did the doctrine of illegality apply in M’s favour?  This was the central question for the Court of Appeal.  The Court of Appeal concluded that even if the doctrine of illegality were to apply, it would simply invalidate the registration and could not undo the fact that F and his father had been in possession for the requisite period of time to gain first possession of the land.  The Court of Appeal concluded that even criminals and scoundrels were entitled to the benefit of limitation periods.

In a previous case run by CLP, R (Smith) v The Land Registry [2010] 3 WLR 1223 – see under Leading Cases on our website –  the court at first instance had decided that Mr Smith should not been able to gain adverse possession of the highway he had lived on for more than 12 years because he was obstructing the highway which was an offence.  The case of Rashid suggests that, in any future adverse possession of a highway case, this issue may have to be re-visited.  See also the case of Port of London Authority v Mendoza which is on our website at:- https://www.communitylawpartnership.co.uk/?s=Mendoza.