Section 144 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 brings into effect the criminalisation of squatting in a residential building. The act obtained Royal Assent on 1 May 2012 and came into force on Saturday, 1 September. An offence will be committed if someone enters a residential building as trespasser and lives there – or intends to live there for a period of time – knowing (or where they ought to have known) that they are a trespasser.
Trespassers or ‘squatters’ are people who have no rights of occupation. In England and Wales, squatting is not currently a criminal offence but it is a civil offence and victims of squatting commonly have to issue court proceedings to obtain a possession order to enforce their civil rights. Currently, the criminal law will only intervene if squatting has taken place in the following circumstances:
- Where squatters have occupied someone’s home or intended home, referred to as a displaced residential occupier (DRO) or protected intending occupier (PIO). Section 7 of the Criminal Law Act 1977 makes it an offence for anyone to enter such premises as a trespasser and fail to leave if asked to do so by a DRO or IRO;
- If an owner obtains an interim possession order (IPO) and the squatter fails to leave within 24 hours of the order, the squatter commits a criminal offence and can be arrested;
- If a squatter causes criminal damage (e.g. in gaining entry to the property), they can be arrested. In practice this is little used, because of difficulties in establishing that damage has been caused by the squatters, who will often claim that they did not cause it or force entry but found the premises ‘open’.
The new law applies only to residential premises and therefore will have no application to squatters of commercial premises or open land (e.g. ‘new age travellers’). Because of the criminalisation of squatting, it is possible that – rather than run the risk of arrest and criminal conviction – squatters will now turn their attention to commercial premises.
The effectiveness of the act will depend in part upon the ability of the police to enforce the legislation. This will place an additional burden on already stretched resources. Historically, the police have been reluctant to become involved in squatters cases; their advice to owners has usually been that it is a civil rather than criminal matter and to recommend that affected owners consult solicitors. Lyons Davidson have acted for many property owners who have been been subject to squatting. While some of those cases involved residential premises and would benefit from the proposed legislative changes, the majority have involved commercial premises or open land, which remain unaffected by these changes.
Squatting in commercial property
While the new law will benefit owners of residential properties, owners of commercial property and open land will be unable to rely on the proposed changes and will have to look to the existing remedies available to them. This will often involve the expense and delay of seeking a possession order in local civil courts and most will continue to need legal advice and representation. It remains to be seen whether one possible unintended consequence of the new law might be an increase in the number of squatters choosing to squat in commercial premises or on open land, as opposed to residential property, so as to avoid committing a criminal offence.
For more information on any of the issues raised in this article, please contact our Civil Litigation team or call us on 0117 904 6000.