On 1 September 2012, section 144 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 came into force. Greeted by much excited commentary in parts of the media with claims that it ended “squatters’ rights”, the section creates a new offence of squatting in a residential building.
The section provides that a person commits an offence if he is in a residential building as a trespasser having entered it as such; he knows or ought to know that he is a trespasser and is living in the building or intends to live there for any period. It makes clear that no offence is committed by a person holding over after the end of a lease or licence (even if he leaves and re-enters the building). Since the coming into force of the Housing and Regeneration Act 2008 however, any secure or assured tenancy can only come to an end upon execution by bailiffs of a court order, with the result that few residential tenants will hold over after the expiry of their tenancy.
For the purposes of the section, a building includes any structure or part of a structure (including temporary or moveable structures) and it will be residential if it is designed or adapted, before the time of entry, for use as a place to live. One looks therefore to the situation before the entry: squatters in commercial premises will not commit an offence, however much they adapt the building once they are in there. The offence can only be committed in buildings: a squatter in a garden of a house seemingly does not commit it.
The offence can only be tried in the Magistrates’ Court and until the reforms to their sentencing powers under the Criminal Justice Act 2003 are brought into force, the maximum penalty will be a £5,000 fine and six months imprisonment. Once the reforms take effect, that will increase to 51 weeks imprisonment.
Since the Criminal Law Act 1977, subject to an important exception, it has been an offence to use or threaten violence to secure entry into any premises if there is someone present in them who is opposed to it. This has been the main protection that squatters have been able to claim and it is largely removed by the police being given a power of entry under the Police and Criminal Evidence Act 1984 for the purposes of making an arrest for the new offence.
The exception to the 1977 Act was that it was not an offence to use violence to secure entry if the squatter had displaced a residential occupier. Indeed it was a criminal offence for a squatter to refuse to leave such premises once asked to do so by the displaced residential occupier or on his behalf. These provisions remain in force. Given that it attracts the same penalties however, it is likely that the new offence will be seen as more straightforward to use although unlike the existing one, it only applies to buildings and does not include land ancillary to them.
The provisions for removing trespassers from land by way of proceedings in the county court under CPR Part 55 remain unaffected by the new law. Although more expensive and time consuming (it being necessary to give 5 days’ notice of the hearing where residential land is involved), in any case where the police are not satisfied that the occupant is indeed a trespasser rather than a former tenant, it will be the landowner’s only remedy.
What rights do squatters have now?
The new offence only applies to residential premises. No new offence is created in respect of occupation without the consent of the owner of commercial land or premises.
The section does not affect the civil law. Those in adverse possession of premises (residential or otherwise) will still be able to acquire title as before, albeit that an arrest will make it easier to remove their belongings once they have gone, remembering of course that they remain the property of the former trespassers.
Importantly, the power to use violence to secure entry to premises occupied by squatters only applies to the police and even then in respect of residential premises. However frustrated they may be, homeowners still cannot break in to their own property to gain access and to that extent the rights of squatters remain untouched.
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