A distinction should be drawn between removing squatters from residential properties and non-residential properties.
HOW TO REMOVE SQUATTERS FROM RESIDENTIAL PROPERTIES
A new criminal offence of squatting came into force on 1 September 2012, making squatting a criminal offence for the first time: or did it?
New criminal offence
Under the new law, namely section 144 of Legal Aid, Sentencing and Punishment of Offenders Act 2012, squatting in a residential property is a criminal offence if:
(a) the squatter is in a residential property as a trespasser having entered it as a trespasser,
(b) the squatter knows or ought to know that he or she is a trespasser, and
(c) the squatter is living in the property or intends to live there for any period.
The new criminal offence only applies to residential properties. The squatter must have entered the property without the owner’s permission, therefore, the criminal offence of squatting does not apply to tenants in rental arrears or refusing to leave/holding over at the end of a tenancy agreement or licence (even if they leave and re-enter the property).
Squatters may be punished by a maximum prison term of up to six months, a maximum £5,000 fine, or both.
Even if the squatter entered the property before 1 September 2012, providing they remain in the property on or after 1 September, they may be guilty of a criminal offence.
Existing criminal law protection
Contrary to popular belief, the existing law, which has been in existence for many years and remains unchanged by the new offence, allowed/allows residential property owners to immediately recover their property from squatters and to even break into their own property to do so.
If there are squatters in your home or in a residential property to which you are not living in but one in which you intend to move into (i.e. an empty property which you have been carrying out repairs on), you may be classed as a ‘displaced residential occupier’ or a ‘protected intending occupier’ and therefore be protected by criminal law and able to take reasonably direct action without recourse to civil courts.
If you are a protected intending occupier you can ask the squatters to leave the property immediately. If the squatters refuse to leave they will be committing an offence under Section 7 of the Criminal Law Act 1977, which states that it is an offence (subject to certain defences) for someone who is on residential property as a trespasser/squatter to refuse to leave when required to do so by a displaced residential occupier or a protected intending occupier.
Notwithstanding the above, it was/is common for the Police to refuse to act and state that it is a civil matter – despite it actually being a criminal matter. We were previously instructed to liaise directly with the Police, so as to ensure that they duly act.
A displaced residential occupier, a protected intending occupier, or a person acting on their behalf, can use reasonable force to secure entry to the property. We have previously used professional agents for this, such as bailiffs. The Police cannot break into the property (the Police are not your agent) under the existing law.
Property owners have to prove that they are either a displaced residential occupier or protected intending occupier of the property, normally by way of statement witnessed by a solicitor or commissioner for oaths.
CASE STUDY UNDER EXISTING CRIMINAL LAW PROTECTION
We were previously instructed by a residential property owner whose property in Slough, Berkshire, had been taken over by squatters. The Police advised him that they could do nothing as it was a civil matter. He sought to instruct us to obtain an order for possession from the county court.
Upon receiving instructions, we immediately called the Police and were met with the same response, “it is a civil matter.” With wilful communication with the Police and upon them being ‘enlightened’, they agreed to act and accepted that it was indeed a criminal matter.
With the Police onboard, we then instructed a bailiff and two security guards to enter the property and requested the squatters to immediately leave.
We often found that bailiffs, in common with the Police, were not aware of the rights afforded to residential property owners under the existing law and were unwilling to act without a court order. Fortunately, we were able to hand-select a bailiff that was familiar with this area of law. Furthermore, since the squatters were Lithuanian, we also selected two Lithuanian security guards for support and to also translate.
A member of our firm attended the property and was present throughout the removal of the squatters – so as to assist the bailiffs and Police with contemporaneous legal issues. Often squatters’ try-their-luck by producing fake tenancy agreements and claim to have been paying rent to the “landlord”. In these circumstances it pays to be prepared.
From initial contact with our client, we successfully recovered our client’s property under the existing law, within 48 hours. Despite this, the common perception is that the existing law did not adequately protect property owners.
Pitfalls of the new law
Due to the “reasonable belief” element of the new offence, protection will not extend to situations where someone enters a residential property in good faith but does not in fact have a right to occupy (for example, a would-be tenant deceived by a bogus letting agent).
We suspect that squatters will use this as a loophole and produce for inspection fake tenancy agreements.
The future of the new law
It could be said that the new law is simply ‘headline-grabbing’, as section 7 of the Criminal Law Act 1977 previously protected homeowners and made it a criminal offence for a squatter to remain in a residential property once asked to leave by the owner. However, the new offence now extends the criminal offence to include all residential properties, not just those that are currently, or about to be, occupied. No doubt landlords, local authorities and second home-owners who were previously unprotected, will welcome the new offence.
The new offence ought to make it much more straightforward for residential property owners to recover possession from squatters seeing as they now only need to call the Police and prove ownership, trespass and so on. But, the big question remains as to whether Police will enforce the new offence.
OTHER CRIMINAL OFFENCES
Squatters may also be guilty of a range of other criminal offences such as:
- Causing damage to Property – s1 of the Criminal Damage Act 1971
- Theft of items from inside the property – s9 of the Theft Act 1968
- Abstracting electricity without authority – s13 of the Theft Act 1968
Dion McCarthy, Trainee Solicitor