Enforcing the new squatting offence

Squatting became a criminal offence on 1 September 2012, with persons found guilty of occupying a residential property without the owner’s permission facing up to six months in prison and/or a £5,000 fine.

This, at any rate, is how the new provisions introduced by the Legal Aid Sentencing and Punishment of Offenders Act have been reported. Because squatting was already a criminal offence – and has been since 1977.

The Criminal Law Act 1977 section 7 made it an offence for a person who has entered residential premises as a trespasser to refuse to leave when required to do so by a ‘displaced residential occupier’ or a ‘protected intending occupier’ of the property. However, it is not clear the extent to which the average bobby on the beat is aware of this offence. Anecdotes abound of owners having been told squatting was ‘a civil matter’. And in any event, the offence is rarely prosecuted.

More well-known is the potential for prosecuting squatters for criminal damage, theft or ‘abstracting electricity’ (Theft Act 1968 section 13). However, the practical obstacles are usually insurmountable: how do you pin the blame for the broken door on one particular squatter, rather than a predecessor or passing vandal? So the question for practitioners now is whether the new offence has more teeth than its elder brothers.

Limited scope

It is important to be aware that the scope of the new offence is limited. It does not cover:

• Former tenants. By section 144(1)(a) is necessary to have entered the building as a trespasser. Accordingly, and as section.144(2) makes explicit, it does not apply to a person who has been the subject of a tenancy agreement or license and subsequently falls behind with the rent or who remains (‘holds over’) at the end of the agreement.
• Commercial properties. The new offence applies to residential buildings only. For the avoidance of doubt, it is not possible to argue that the presence or actions of the squatter has turned a commercial property into a residential property: it must have been adapted into a residential building before the squatter moved in – see section 144(3)(b). The position in relation to mixed use buildings – such as a pub with a flat above – has yet to be tested. Building is defined in the act as “any structure or part of a structure”, so it may well be that a squatter moving into a pub and using only the public part would be in the clear.
• ‘Just visiting’. Section 144(1)(c) provides that the trespasser must be living or intending to live in the building for any period. Thus the offence does not apply to people who are in the residential building momentarily or have no intention of living there. The practical difficulty this presents to police is obvious.
• Garden sheds etc. Surprisingly, the new offence only applies to the actual residential building itself. The rationale for this is unclear, bearing in mind that the earlier 1977 offence covers any land ancillary to a building, thereby including domestic gardens, garden sheds and so on. This lacuna means squatters may try to run the argument that they are actually living in tents in the garden of a property and using the building itself for other purposes. However, the new offence does explicitly cover residential buildings which are temporary or moveable, so caravans or park homes will be caught.
• Trespassers before 1 September 2012. However, section 144(7) provides that the offence applies regardless of whether the trespasser entered the property before or after commencement. This means that trespassers who have been living in the premises for many months or years prior to commencement will be guilty of this offence if they have chosen to remain after 1 September 2012.

Appetite for enforcement

Even where the new offence does, in theory, bite, the real question is whether the police have the appetite for enforcement. After all, they did not tend to enforce the pre-existing criminal offences. The problem with the existing laws, if any, opponents to the new offence said, was a lack of enforcement. Privately, the police are worried about ?this increased drain on their resources a?nd lack of training concerning the new ?legal landscape.

Nonetheless, landowners are optimistic that with the media spotlight firmly on squatting, the police will be forced to engage more resources. Indeed, the first few arrests under section 144 are beginning to filter through. It is understood they took place on 3 September 2012 after a police raid on a property in Brighton. From the BBC photographs, this appears to have been a residential flat above a commercial building, so it may be that if this case makes it through the courts it will shed some light on the mixed-use question.

Squatters’ rights groups are famously active and legally savvy. They have been quick to size up the Act, and to inform their supporters about where the Act does and does not bite. Landlords will also need to watch out for individual squatters likely to go further and use the internet and information available from the Land Registry to produce fake tenancy documents in the hopes of discouraging police involvement.

Unintended consequences

One of the main fears about the introduction of the section 144 offence was that it would lead to a flight from residential to business properties. The exclusion of commercial premises was primarily a political decision – the new Act was taking shape during the peak of the Occupy movement, and the government was loathe to appear to be quashing legitimate protest. Logically, this will make commercial buildings more of a target as squatters look for alternatives. However, it is early days, and it is not yet clear if this is happening on a large scale. There is already pressure, spearheaded by the MP for Chatham and Aylesford Tracey Crouch, to extend the new offence to commercial buildings.

Another consequence is perhaps less obvious – the impact on the more genteel world of boundary disputes. For example, in one recent dispute concerning a ‘flying freehold’ (i.e when part of a freehold property overhangs part of a different freehold property, an oddity which tends to crop up in densely populated hilly areas), the parties were unnerved to find that the criminal law would potentially apply.

However, as section 144 concerns the buildings themselves, it is likely to come up in relatively few cases. The moral is that it is not just landlord and tenant lawyers who need to keep up to date on section 144, but all property practitioners.