Mi casa su casa?

While most people accept the concept of ownership and believe possession will naturally follow, it appears that this is not always the case when one looks at the question of squatting.

So-called 'squatters' rights' have a proud tradition in England and can be traced back to 1649, when groups of like-minded folk were regularly and quite successfully putting paid to any suggestion that a lack of finances should deny them a piece of this green and pleasant land. Collectively known as the 'True Levellers', they banded together to occupy disused land to bring attention to the plight of the poor in terms of land ownership.

Moving into the post-war years, it was the turn of veterans and their families to take up the cause. Far from being labelled thieves, squatters have often been championed by newspapers as campaigners for social justice, with the underdog spirit dampening any concern over lawbreaking.

The same well-organised squatters' communes exist today, albeit perhaps brushed with the modern cult of celebrity '“ occupying rogue Arab leaders' London mansions or a fallen banker's umpteenth home is the 21st century squatter's cause celebre. This mixture of civil disobedience and celebrity has again put squatting on the front pages, and no doubt forms part of the government's sudden interest in it.

Indeed, the government is so concerned with a reported rise in cases of residential squatting that it has announced a crack down that could spell the end of our quirky civil law system. A two-pronged attack has been mooted. Housing minister Grant Shapps has unveiled an education drive designed to arm homeowners with information about how they can guard against these unwanted guests, and how to remove them if they do show up. Justice minister Ken Clarke has also suggested a change in the law to address perceived statutory weaknesses '“ making squatters subject to criminal prosecution and imprisonment.

On the home front

So, what is it about the current law that gives rise to cries of injustice? At present, in England (unlike Scotland) squatting remains a civil, rather than criminal, offence. The usual procedure when faced with squatters is therefore the court order. Indeed, physically removing squatters from your property arguably carries more criminal risk than the act of squatting itself.

Currently the legal framework does provide for the application for an interim possession order which can be sought and obtained in as little as two days. Once served, squatters must leave within 24 hours or face arrest and prosecution. The order also means that they cannot return to the property within a year of its date. But this is sometimes considered too lengthy a process and not one that is suitable for an emergency situation, suchas a residential homeowner returning from a weekend away to find their property squatted.

On top of the somewhat laborious power to remove is the idea that the squatters themselves are protected by the law in some way. Squatters often site section 6 of the Criminal Law Act 1977 as being the mainstay of their protection. This makes it an offence to use violence to gain access only when there is someone actually at the property opposed to such an entry. It is at this point that most homeowners will believe the law has let them down, giving squatters a right to gain entry if no one is around to stop them.

This is where Shapps' education drive comes in '“ he hopes current law can debunk this myth that squatters have the upper hand, under section 72 of the Justice and Public Order Act 1994. This confirms that the 'squatters' right' under section 6 does not apply to a displaced residential occupier or a protected intending occupier. In fact, many homeowners will be delighted to learn that section 7of the Criminal Law Act 1977 also states that it is an arrestable offence for a squatter to fail to leave a residential property when asked to do so by a residential homeowner who has produced the requisite written declaration.

It should also be remembered that the police powers do not end there '“ they have the power to enter premises to arrest anyone on suspicion of criminal damage and theft.

It should then follow that the case of the displaced hotelier could potentially have begun and ended with a call to the police and subsequent arrests, and not a court hearing and an eviction notice.

No one would question that knowledge can be a powerful weapon when used correctly. If homeowners and police are aware of what action they can take when faced with a genuine incidence of squatting, then the number of these cases should decrease, reducing the cost to the homeowner and also the cost to the courts.

Dedicated squatters groups would undoubtedly challenge the perception that they have simply not read further than section 6. Many squatters will argue that they know enough of the law to ensure they only occupy buildings that are not covered by the above Acts. In recent incidences, they argue this is precisely why they are occupying premises '“ to highlight the greater social ill of scores of empty properties that should render their owners ineligable.

Fixer upper

If a change to the statute is on the agenda, practitioners are likely to want to see similar rights afforded to the owners of non-residential properties and protection widened beyond those deemed to be either displaced occupiers or protected intending occupiers.

A general criminal offence in relation to squatting would arguably simplify the procedure as the only test to be applied would relate to ownership and refusal to leave and not, as is currently the case, the imminent intention of the owner towards the property in question and whether the same comprised residential or commercial premises.

However, given the huge number of empty properties, should we really be treating this as the primary issue? Would it be better if this was addressed by the law requiring people to take responsibilities for their properties rather then leave them vacant without good cause? The general perception of those who squat in properties is that they cause damage and distress. Squatters of course challenge this '“ indeed the well-organised groups often provide little short of a caretaking service. If offered the opportunity, many say they would happily pay rent for their accommodation. So perhaps we should be looking at the bigger picture.

Whether we will actually see an increase in the number of homeowners utilising their legal rights under these proposals is a question of time. It could also be a question of how serious the government really is about taking action '“ perhaps once they decide the message has got through that they are tough on squatting, it will be relegated for more pressing Big Society concerns.

What seems clear is that the law makers and the law enforcers also need to consider the root of the squatting problem if it is ever to be reduced. It is well known that simply making something illegal is not always enough of a deterrent. Listening to why people are squatting in the first place, and tackling that issue, is surely just as crucial.

Sceptics might consider that the nervousness within the corridors of power are less about the social injustice of squatting and more about reacting to whom this behaviour is affecting. Would this issue be such a high priority if squatters were targeting a generic terraced house rather than a grand London mansion block?