Squatting has always been a contentious subject for discussion, whether you have been the unfortunate victim of squatters taking up residence in your house or whether you have given support to a client, colleague or friend dealing with the legal process of evicting squatters. This article looks at the current legal process and suggests legislative changes are urgently required to include commercial properties within the offence of squatting.
The long arm of the law
The average man on the street will be aware that since autumn last year, squatting in a residential property became a criminal offence punishable by up to six months in prison and/or a fine of up to £5,000. From 1st September 2012, Section 144 of the Legal Aid, Sentencing and Punishing of Offenders Act 2012 (LASPO 2012) made squatting an offence punishable by up to six months in prison and / or a maximum fine of £5000.
The offence does not cover squatting in non-residential buildings or land, but in certain circumstances squatters who have broken into those premises or caused damage might be guilty of other offences, which will be looked at in more detail later in this article. The offence is also not retrospective for cases where the squatting has ceased. It does, however, apply to squatters who went into occupation before 1st September 2012 and remain in a residential property now.
At the end of September 2012, the national press highlighted that a squatter in a London & Quadrant housing association property had been prosecuted under section 144 of LASPO 2012. Mr Alex Haigh allegedly pleaded guilty to squatting and was sentenced to 12 weeks in prison. This was the first example of a squatter being imprisoned under LASPO. There was a suggestion that this first case was unusual as Haigh immediately admitted squatting, possibly because the offence was so new he did not understanding the impact of his guilty plea.
The consequences of LASPO have now had nine or so months to sink in and squatters are once again clued up about how to avoid criminal offences. If you want to avoid criminality then squatters are aware that they should squat in commercial premises. If squatters continue to invade residential properties then they are more likely to claim they are in occupation under a lease or tenancy agreement with an unknown landlord and that they have been the victim of a fraudulent letting.
Residential property owners are now undoubtedly in a much better position regarding squatters, as the police can arrest and prosecute any offender. The added benefit of this new process is that a property owner can now report the trespass direct to the police without incurring the expense of involving lawyers. However, for commercial property owners the situation remains much the same and there has been an obvious increase in the number of squatters breaking into business premises.
A cursory Google search will reveal a number of websites which have been created to advise squatters. These sites will typically be "squatter's rights" organisations offering legal advice/warning notices, which can be downloaded from their websites, confirming that non-residential properties are not caught by the new law and encouraging squatters to target commercial sites. You can even find a website which runs a practical legal workshop which will help a squatter resist eviction. So how do we get rid of commercial squatters and what can be done to stop them?
Breaking and entering commercial premises - the current law
There are legal procedures currently available for taking back possession of commercial property, namely those procedures relating to trespass and forfeiture of a lease or relief from forfeiture of a lease. Trespass is a civil wrong involving entering property or placing something on or over the property. In order to be a trespass, this must be done without any necessary consent from the person entitled to possession of the property.
Before starting a claim for possession from a trespasser, there must be an actual trespass on the claimant's property. If there is merely a threatened trespass, it may be more appropriate to seek an injunction, rather than a possession order for land (Secretary of State for Environment, Food and Rural Affairs v Meier [2009] UKSC 11, December 1 2009). The injunction would be a court order prohibiting the person from entering the premises, also known as a prohibitory injunction.
When squatters are already in occupation of commercial premises, if the trespass is happening over part of a property, the claimant can apply for and obtain a possession order preventing the trespass over the entire property, so long as there a real risk of the squatters moving into other parts.
This would prevent the trespassers from merely moving to another part of the property once the possession order has been made, causing the claimant to have to apply for a further order. This is the theory, but the procedure take a little more time, money, patience and nerves of steel as the matter rumbles through the civil courts.
In most cases the claim will be made in the County Court nearest to the property. It will set out the landowner's right to possession and involve a witness statement giving details of the occupation. The court would then list the matter for a hearing and you are required to provide the relevant notice to the trespassers. A little known fact is that occupational licensees can also evict squatters from premises/land.
It is suggested that as matter of practice in trespasser claims the hearing should be heard quicker than usual. My firm has a lot of experience dealing with both residential (prior to LASPO) and commercial squatters and, in the main, a possession order can be obtained within 7 days from receiving instructions from the client.
However, this can sometimes depend upon the particular court where the matter is to be heard and it can take a little longer, say two weeks, before you have a hearing date. The procedure involved in obtaining a possession order is time consuming and therefore expensive for the client who has probably not budgeted for the expenditure. There are also no criminal sanctions involved and sometimes no assistance from the police is available.
It has always been possible to opt for an "interim possession order". If the correct procedure is followed, this order can also be obtained from the courts within a few days and squatters must leave the property within 24 hours of service of the order. Unlike a normal court order, an interim possession order means that if squatters do not leave within 24 hours they are committing a criminal offence and may be arrested. This option is however more expensive than the standard possession order and involves at least two hearings at court. In the current economic climate, money is key for most clients.
Government sympathy
At the start of May 2013, the Government took its first steps towards criminalising squatting in commercial premises. Justice Secretary Chris Grayling has written to MPs to seek evidence of the scale and impact of squatting in commercial premises in order to form a better picture of what is happening in the UK.
Since the change in the law at the end of 2012, the property industry has been lobbying to extend the criminal sanctions to commercial real estate. Owners of commercial premises must currently rely on the civil proceedings mentioned above to evict squatters and these are neither fast nor user-friendly. Examples of squatters in warehouses, offices and pubs have been the subject of media focus and rarely a week goes by without there being some commentary on commercial squatters in the national press.
In November 2012, the Cross Keys pub in West London was invaded by individuals who turned a lovely old pub into a den for squatters with boarded-up windows, dingy lighting and a smoky atmosphere. The pub closed a few months before the change in the law after the owner said it was losing too much money and squatters immediately made it their home. These are new breed of squatters who claim that they do not believe in taking over other people's houses, but think it' is acceptable to take over a corporation's premises.
The Government is aware that squatting in commercial premises is an ever increasing problem and can only get worse. The result of its 2011 consultation exercise about residential squatters raised some concerns by companies that squatting would change from invading houses to invading offices. It is hoped that the latest evidence gathering exercise by the Justice Secretary will add new weight to the property industry's plea to include commercial buildings within the legislation.
The British Property Federation ("BPF") has highlighted that the chronic shortage of housing is clearly the root cause of the problems surrounding squatters and this needs to be addressed by the Government. The current legislation appears to be penalising businesses with an empty property, not only by forcing them to pay full business rates whilst empty, but in having to spend significant sums of money securing their premises and facing costly legal proceedings to evict squatters.
Mike Weatherley, Tory MP for Hove and Portslade, led the Government's efforts which brought about the criminal change for residential squatters. At the start of May 2013, Weatherley delivered a petition to Downing Street calling for a legislative change to include commercial premises. Weatherley's letter identifies an example of squatters taking up residence in a former school which is being refurbished into offices.
"A salient example of this was seen within my own constituency just two months after the law had come into effect when a bunch of squatters broke into a former school that was just about to be let as a refurbished office suite. The squatters caused significant misery and distress and left an appalling mess after themselves", says Weatherley in his letter to the Prime Minister.
Avoidance tactics
If the Government chooses to extend the law on squatting to include commercial real estate then a clause could be introduced into a justice bill later this year. There are however currently no commitments to extend the law to encompass commercial buildings. There is still hope that lobbying from MPs and the property industry in general will force a change as the logical next step to stopping such anti-social behaviour.
In the meantime, the best advice to clients and commercial property owners is to take the following steps:-
1. Ensure vacant property is as secure as much possible using CCTV cameras, alarms, locks and on site security guards;
2. Inspect the property internally and externally on a very regular basis;
3. Remove any items of value, if at all possible;
4. Turn off electricity, gas and water supplies if the building is going to be unused for some time;
5. Consider granting short term leases of vacant property for low rents in return for the occupiers protecting the property from squatters and vandalism;
6. Use height restriction barriers and ditches dug around the perimeter for premises with car parks to prevent caravans and trucks from entering the premises unlawfully;
7. Take immediate legal advice in the event that your commercial premises are invaded by squatters or the threat of such invasion becomes apparent.
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.
