Author: Alison Mould
In response to "public concern about the harm that trespassers can cause", a new offence of squatting in a residential building has been introduced by section 144 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012.
The law has been in effect since 1 September throughout England and Wales. Put simply, its aim is to make the eviction of squatters quicker and easier. For the first time, squatting itself is a criminal offence, and police officers now have powers to enter a building where a squatter resides for the purpose of making an arrest under this section. The penalty on conviction is up to six months in prison and/or a fine.
The alternative, pre-existing route to repossession can be drawn out and costly: the landlord must issue a claim for possession of the property and appear at a court hearing to argue his case. Once a possession order is successfully obtained and served, backlogs in the courts can mean a lengthy wait for the repossession to be carried out by court-appointed bailiffs.
The new law
In order for the criminal offence to have been committed all of the following must apply:
The offence will not apply to former tenants who are, for example, "holding over" at the end of their lease, or in arrears of rent. Somebody let a property by a bogus estate agent (who does not know they are a trespasser), or somebody delivering junk mail (who has no intention of living in the building), will not be affected by the Act.
Note that the offence applies in respect of residential, not commercial, buildings. This includes "temporary or moveable" structures, so squatters in caravans and prefabricated units will be also be subject to the Act.
It will take some time before it is clear how these new powers will be used, and the extent to which they are preferable to existing legal processes.
Like any criminal offence, a police force’s desire or ability to make full use of the new law will be subject to local policing priorities and resources. There may be fewer administrative steps required than in obtaining a court order for repossession, but the police may well have their own backlogs to clear before taking action against a squatter. Police forces are also encouraged by the Ministry of Justice’s guidance to, in effect, proceed with some caution: to liaise with local housing authorities and homelessness service providers, and develop joint working protocols, prior to taking enforcement action. This will take time.
There may be an additional reluctance to pursue squatters with vigour before legal challenges to the new law have been heard. A test case is currently being fought on the basis that the offence may breach an individual’s right to a "private and family life" under Article 8 of the European Convention of Human Rights, the result of which is not expected for a number of months.
The first prosecution under the Act, after squatters were evicted from a public housing estate in central London, recently resulted in a 12 week prison sentence, though it remains to be seen whether such penalties will routinely be handed down.
Particularly while the new law remains in its uncertain infancy, property owners should seek professional advice on the available legal options before taking steps to evict squatters from their property. But having another potential tool available can be no bad thing for landlords.
For further information, please contact: Alison Mould, Partner, Fladgate LLP (firstname.lastname@example.org)