There has been increasing concern about the cost and inconvenience caused by squatters when they occupy property, not least because of the apparent inability of the police to assist property owners and occupiers when such problems occur. As a result, owners and occupiers have too often had to spend considerable sums in seeking to evict squatters, repairing damage and cleaning up the debris they leave behind.
However, it may be that these problems are in the past - at least for owners and occupiers of residential premises. Since 1 September 2012, when section 144 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 came into force, there now exists an offence of squatting in a residential building. But will the police be willing to use the new offence and, if so, what are the implications for the owners of commercial properties?
Lack of effective criminal remedies
Until the 2012 Act came into force, squatting was not of itself a criminal offence in England and Wales. It was simply regarded as a form of trespass and therefore a civil wrong.
The only potential criminal sanctions available to deal with squatting were under the Criminal Law Act 1977. Section 12 of this Act makes it an offence for a squatter to fail to leave a residential property when required to do so by a displaced residential occupier or a protected intending occupier of the property.
Aside from the fact that this offence gives no assistance to owners of commercial property, there are also circumstances where the criteria for the offence do not apply in a residential context. For example, the offence does not arise where the property owner is not in occupation of the residential property immediately before being excluded by the squatter and does not require the premises for occupation as a residence - which applies to many holiday-home owners. In such circumstances, the police are unable to intervene without evidence that the squatters have committed other offences such as criminal damage or burglary.
Other problems
Even where the criteria for an offence under section 12 of the 1977 Act arise, the procedure has not always been used - much to the frustration of many property owners and occupiers. This appears to have been mostly down to a lack of awareness and education within the police, as recognised by the Metropolitan Police Service in its response to consultation CP12/2011 "Options for dealing with squatting". At page 32, it stated:
"The MPS also recognise that the lack of training and practical knowledge regarding the law regarding squatting, particularly section 7, may be a barrier to effective enforcement. Improved training, including greater awareness of the damaging impact of squatting, is part of ongoing work."
This lack of awareness and education on the part of the police was unfortunately not shared by the squatter community, a number of whom became well-practiced in advertising their "squatters' rights" by way of a "section 6 notice" displayed at an appropriate entry point to the land. These notices were designed to deter anyone seeking to have the squatters forcibly evicted, by invoking section 6 of the Criminal Law Act 1977. Section 6 of the 1977 Act provides that it is a criminal offence to use or threaten violence to try to gain entry into premises where:
- there is someone present on those premises at the time who is opposed to the entry of that person; and
- the person using the violence knows that this is the case.
Although the display of a "squatters' rights" notice was not required by section 6, the intention was to give notification to anybody trying to enter the premises of the presence of someone on the premises who was opposed to any such attempt at entry. Under section 6(1)(b) of the 1977 Act, this would then make it a criminal offence for that person to go onto the land and use violence to secure it. (The section does not apply to a displaced residential occupier, but this does not mean that such a person can use anything more than reasonable force to seek an eviction.) A conviction under section 6 can lead to imprisonment for a term of up to 6 months or to a fine of up to £5,000, or both.
As a result of these well-informed squatters, landlords often faced the (somewhat ironic) risk of being subject to a criminal prosecution if any forced re-entry of premises was attempted. Since the police often refused to become involved in dealing with such "civil" matters as squatters, the inevitable result was the need for a property owner to incur time and money on obtaining a Court Order in order to recover possession. Whilst the costs of such possession proceedings are technically recoverable, costs orders against trespassers tend to be of little value since the action is usually brought against "Persons Unknown". Even where this does not apply, a claimant owner is only like to recover fixed costs if the possession hearing is uncontested.
The new offence
As mentioned above, Parliament recently decided to create a new offence of squatting in a residential building - which was effected under section 144 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012.
This offence is committed if a person (a) is in a residential building as a trespasser having entered it as a trespasser, (b) knows or ought to know that he or she is a trespasser, and (c) is living in the building or intends to live there for any period. A building is within the definition of "residential" for the purposes of the Act if it is "designed or adapted, before the time of entry, for use as a place to live" (see section 144(3)(b)). Pursuant to section 144(2) of the 2012 Act, the offence will not be committed by tenants, lodgers or occupiers who originally occupied the property with permission but subsequently had a disagreement with the landlord and refused to leave, even if they leave and re-enter the building.
A person convicted under section 144 faces imprisonment for up to 6 months or a fine of up to £5,000 (or both). It is irrelevant whether the person entered the building as a trespasser before or after the commencement of the section. Further, under section 17 of the Police and Criminal Evidence Act 1984, a constable may enter and search any premises for the purpose of arresting a person for an offence under section 144.
So, is the new offence better?
As yet, it is unclear the extent to which the introduction of this criminal offence will, in practice, remove the need for landlords and others to bring civil proceedings in order to remove squatters from residential premises. Section 144 of the 2012 Act is certainly wider in scope and more straightforward than section 7 of the 1977 Act, in that it criminalises the act of squatting itself rather than merely a failure to leave on request.
Given these improvements, it may be that the new offence will be better understood and more widely enforced by the police than section 7 of the 1977 Act was. Indeed, it may even be that the mere introduction of a clearer criminal offence for the police to use will act as a sufficient deterrent to dissuade many squatters from occupying residential properties in the first place. However, it is too early to tell in these early days of the availability of these new criminal sanctions.
The main complaint regarding the new offence has been that it does not extend to criminalising squatting at commercial properties. However, the Ministry of Justice highlighted in its consultation that tackling squatting in residential properties was regarded as a "first step". It also said that it will look at how to improve current civil procedures and the enforcement of existing criminal offences in order to deal with squatting in commercial premises.
What happens with squatters of commercial properties?
In theory, it is possible for possession of all forms of commercial premises to be recovered without a Court Order provided that:
- the occupier is not a residential tenant (or a former residential tenant) of any part of the building; and
- no force is required to obtain entry into the premises.
However, the requirement for entry to be without force means that direct action to retake property is often difficult. As a result, most owners of commercial property faced with squatters end up with little choice but to issue a civil claim for possession. Claims against trespassers have an accelerated procedure under Part 55 of the Civil Procedure Rules, which means that there is only either 2 days (non-residential property) or 5 days (residential property) between service of the claim and the hearing date. (This compares with at least 28 days between the issue of a claim and the hearing date for standard possession claims.) However, in practice, hearings of claims against trespassers can often take place around 2-4 weeks after the issue of the claim and there can be a similar delay after the order is made in securing a bailiff's appointment for enforcement.
What about using Interim Possession Orders?
In an effort to try to speed up the removal of squatters, some property owners look to the option of applying for an Interim Possession Order ("IPO"). This type of order offers a potential "fast track" to possession, as it requires the trespassers to vacate the premises within 24 hours of its service upon them.
This procedure is available only where:
- the claimant is solely seeking possession (i.e. not also a claim for rent or mesne profits - such claims are unlikely against "persons unknown");
- the claimant has an immediate right to possession and has had this right throughout the squatters' occupation; and
- the claim is made within 28 days of the date on which the claimant first became aware (or should have become aware) of the trespass.
An IPO will not be granted where the defendant trespassers entered or remained on the premises with the consent of a person who, at the time of the consent, had an immediate right to possession. This basically reserves the procedure for use against trespassers as it cannot be used against tenants or licensees, even where their tenancy or licence expires and they subsequently become trespassers by failing to vacate the property. Under CPR 55.22, the hearing of this type of application should take place not less than 3 days (or as soon as practical) after the date of issue. In addition to checking that the above conditions have been complied with and that satisfactory service of the application has been effected on the trespassers, the court is also required to consider whether the claimant has given - or is prepared to give - certain undertakings. (This additional hurdle arises because an IPO is effectively an interim injunction.)
In particular, the court is likely to seek an undertaking that where it subsequently decides that the claimant is not entitled to the IPO, the claimant will reinstate the defendants if required and will pay such damages as the court may order. The court is also likely to seek undertakings from the claimant that, before the claim for possession is finally decided, it will not:
(i) damage the premises;
(ii) grant a right of occupation to any other person; and
(iii) damage or dispose of any of the defendants' property.
In the event that these undertakings are given, the conditions for an IPO are satisfied and the claimant proves effective service of the relevant documents, the court will grant an IPO. At the same time, it will set a date for the final hearing of the claim for possession - which will be not less than 7 days after the date on which the IPO is made.
The IPO must be served within 48 hours after it is sealed, together with the copies of the claim form and the written evidence in support. Following this, the squatters have 24 hours in which to leave, or else they can be arrested if they remain at the premises for committing an offence under section 76 of the Criminal Justice and Public Order Act 1994. This is an advantage over the normal (even accelerated) possession procedure, in that the police may potentially become involved much more quickly. However, once again, problems are sometimes encountered when property owners seek to arrange enforcement by the police.
At the final hearing, the court may make any order it considers appropriate. This includes making a final Order for possession, dismissing the claim for possession, giving directions for the claim for possession to continue or enforcing any of the claimant's undertakings.
What does the future hold?
Whilst it is early days for section 144 of the 2012 Act and its effectiveness at quickly removing squatters from residential property is yet to be proven, the creation of this new offence is certainly step forward for property owners and occupiers - if only to emphasise Parliament's intention that the police should take action to deal with such situations. The "Advisory Service for Squatters" is certainly concerned about the implications of the new offence, stating that that they are unable to be "as reassuring as we would wish" to those they are advising on the new law. They have also recognized and recommended that squatters should remove the "old much-loved Legal Warnings, as these will be read as an admission of committing a criminal offence". Nonetheless, it seems that the ASS will be keen to encourage squatters to challenge the new laws and it expects to see "a spate of challenges and test cases, which will draw lines between what can and what can't be done".
Unsurprisingly, the ASS has highlighted the fact that non-residential properties can still be squatted. Bearing in mind the costs and delay involved in pursuing court proceedings, it is hardly surprising that owners of commercial property have expressed disappointment at the limited ambit of the new legislation. This disappointment is particularly acute given the concern of property owners that squatters who might previously have occupied residential properties may now turn their efforts to occupying commercial property in order to avoid the risk of criminal prosecution and to delay eviction for as long as possible. Again, time will tell whether this concern is borne out by events and whether Parliament will be required to intervene once again.
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.
