Squatting in a residential building in England and Wales becomes a new offence on Saturday 1 September 2012. The following is a brief summary of the offence, what must be established in order to rely on the offence and the penalties that can be imposed.
Does it apply?
Section 144 of the Legal Aid, Sentencing & Punishment Act 2012 creates the offence but it applies only to squatters in residential buildings. The new offence does not, therefore, apply to commercial property, open land or previous tenants.
Elements of the offence
Subsection 1 provides that 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.
Residential building
A "residential building" is any structure or part of a structure which has been designed or adapted for use as a place to live. The definition includes both temporary or moveable structures such as park homes and caravans.
The building must also have been designed or adapted for use as a place to live. This means that where, for example, an office has been converted into flats, it will be protected by the offence. However, if a trespasser modifies a commercial building by placing his bedding and personal effects in it, they would not be committing a criminal offence because the building had not been adapted before the point the trespasser entered.
Trespasser
A person will only commit the offence if they have entered and remain in the residential building as a trespasser. The offence will therefore not apply to a person who enters the building with the permission of the owner, including a legitimate tenant. In those circumstances the property owner would need to pursue action through the courts in order to regain possession of the property.
The individual must know (or be in a position where they should know) that they are a trespasser. The offence will therefore not apply to somebody who enters the property in good faith reasonably believing they have permission to enter. For example, if a fraudulent letting agent encourages an unsuspecting tenant to occupy a property, the tenant would not know or necessarily ought to know that they were a trespasser.
Living or intends to live
The trespasser must be living or intend to live in the building for any period. The offence will therefore not apply to somebody who is in a building momentarily or with no intention of living there.
What about tenants who refuse to move out?
The offence will not apply to individuals who hold over after their lease or licence has ended, regardless of whether or not they have left and re-entered the building. The offence will apply to individuals whose original entry and occupation of the building was unauthorised.
What about current squatters?
Subsection 7 provides that the offence will apply regardless of whether the individual entered the residential property before or after 1 September 2012. Therefore trespassers who have been living in a residential building prior to 1 September will still be guilty of the offence if they remain in the building as trespassers after 1 September and the other elements of the offence can be established.
What can the police do?
Subsections 5 and 6 set out the penalties for the offence. The maximum penalty will be 6 months imprisonment, a £5,000 fine or both. Most significant though is the power of arrest.
In the event of the offence arising, an owner must contact the local police. If the Police are satisfied that the claim is genuine they have the power to enter and search premises for the purpose of arresting a person for the offence of squatting in a residential building, under section 17 of the Police and Criminal Evidence Act 1984.
An owner cannot use the power themselves, and to attempt to do so would be an offence under the Protection from Eviction Act 1977.
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 offence also gives the police a specific power to enter the property and arrest someone who is suspected of squatting in a residential building.
Once the offence has come into force, the police will therefore 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. After 1 September 2012, it is therefore anticipated that use of such notices will diminish but they may continue to be used by squatters in non-residential buildings.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
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