Prior to 1 September 2012, when squatting in a residential building in England and Wales became a criminal offence, the police would rarely get involved in the removal of squatters from buildings, other than the occasional displaced residential occupier or a protected intending occupier. With the introduction of new police powers this could now all change...
Section 144 of the Legal Aid, Sentencing & Punishment Act 2012 creates the offence, which applies to squatters in residential buildings. The new offence does not apply to commercial property, open land or previous tenants.
The offence is committed when a person is in a residential building as a trespasser and that person knows or ought to know that they are a trespasser and the person is living in the building or intends to live there for any period.
By definition, a “residential building” is any structure or part of a structure, which has been designed or adapted for use as a place to live. This includes temporary or moveable structures such as park homes and caravans.
The maximum penalty will be six months imprisonment, a £5,000 fine or both. If the police are satisfied that a claim is genuine they have the power under section 17 of the Police and Criminal Evidence Act 1984 to enter and search premises for the purpose of arresting a person for the offence of squatting in a residential building.
An owner cannot use the power themselves, and to attempt to do so would be an offence under the Protection from Eviction Act 1977.
So what will be the effect on squatters rights? Squatters rights come from Section 6 of the Criminal Law Act 1977. Section 6 provides that it is an offence for a person without lawful authority to use or threaten violence to secure entry to a property against the will of those inside.
The new offence will make it more difficult for trespassers to assert that they have rights in respect of residential buildings because their occupation of the building will be a criminal act.
The police should now not be deterred if they see a “squatters rights” notice on the door of a residential building asserting that it would be an offence for anyone to break into the property, including the police.
Squatting in a commercial building is an altogether different proposition. The new law does not affect squatters occupying commercial buildings. If commercial landlords/landowners find squatters on their property and are unable to persuade them to leave, legal action in the civil court is usually necessary. The options available are:
1. Interim Possession Order (IPO)
This procedure is usually used when a landowner requires possession of a property urgently, often in the context of a retail shop.
A claim must be issued at Court along with an application for an IPO and a supporting witness statement, both of which must be signed by the landowner. The claim and application must be served within 24 hours of being issued and the squatters must leave the property within 24 hours of being served with the IPO. If they do not, they are committing a criminal offence and may be arrested. The offence is punishable by six months imprisonment. It could be seen therefore as a civil version of the new law, although unlike the new law it requires proceedings to be brought first.
An IPO must be sought within 28 days of becoming aware of the existence of squatters. If 28 days have passed, an IPO application will not be possible. It is also not available for open land.
2. Possession Claim
A claim is usually issued against “Persons Unknown” and served at the relevant building. A hearing will then take place when the court will decide whether to make an order for possession or not. Enforcement can then be carried out by the court bailiffs, following a Warrant of Possession.
To prevent squatters in commercial buildings, property owners are always advised to keep their properties secure when unoccupied and to consider using adequate security measures when a property is both let and vacant. Efforts to give the appearance of occupation are also important such as the use of timed lights, blinds etc and arranging for third parties to make regular visits to the property such as cleaners or security guards.
If commercial properties are going to be left unoccupied for long periods of time, then owners may consider letting the property on a short-term temporary trading basis.
It remains to be seen how the police will react to their new powers, but not surprisingly, the new measures have been welcomed and widely praised by landlords.
About the author
David Marsden is a partner at Charles Russell and specialises in commercial and residential property disputes, with regular experience of mediation, arbitration and court proceedings up to the Court of Appeal involving landlord and tenant issues, tenant default, dilapidations, property insolvency, 1954 Act lease renewals, and possession.
David has extensive experience in the retail sector. He was involved in the Powerhouse case, advising clients on the re-structuring of their property portfolio and the effect of a parent company guarantee. He also heads up the Mortgage Disputes Team.
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