New squatting law unlikely to provide panacea

Ruth Spankie, a solicitor with drydensfairfax, examines the pros and cons of a new law which makes squatting a criminal offence but will it make eviction easier for property owners?

New legislation which takes effect in September means squatting will become a criminal offence for the first time. Whilst the move may appear a beneficial one there are still lots of questions as to how effective it will be for lenders and landlords – particularly LPA receivers.

On 1 May 2012 the Legal Aid, Sentencing and Punishment of Offenders Act received Royal Assent, with it, introducing a new criminal offence of squatting in a residential building.

A person will commit the offence if:

- he is in a residential building, having entered as a trespasser;

- he knows or ought to know that he is a trespasser; and

- he lives or intends to live in the building.

This arrestable offence will be punishable by up to a year in prison or by a fine of up to £5,000.

This new offence is the government’s first step in updating the law dealing with squatters. The Ministry of Justice carried out extensive consultation last year, and looked at numerous options, including amending the existing legislation or introducing a new offence. It was decided that the best way forward would be to introduce new legislation, although homelessness charities and organisations supporting squatters’ rights have alleged that criminalising squatting targets the homeless, who are an already vulnerable section of society.

Evicting squatters

So what will the new legislation mean for landlords and receivers looking to evict squatters from properties?

As it stands, a landlord’s main route to deal with squatters in residential property is to take civil possession proceedings in the County Court. It can take around two months to obtain an eviction date following the standard possession proceedings route, depending on how busy the local court is. The alternative where the squatters have recently moved into the property is an application for an Interim Possession Order. While this procedure is designed to be much quicker than the standard route and is excellent in urgent cases, two hearings and more complex documentation mean this action can be fairly costly for the landlord.

Criminalising squatting could therefore save landlords a substantial amount of money in legal fees as the police would take on the majority of the work. However, whether the criminal procedure will be quicker than the current civil procedure remains to be seen. Certainly in using the new criminal procedure landlords will have less control over the situation than with the civil procedures and will have to leave the eviction of the squatters in the hands of the police and the Crown Prosecution Service.

Tenancy agreement

The new legislation only affects people who have entered a residential building as trespassers and who ought to know that they are trespassing. Therefore, we may find trespassers in residential buildings handing the police tenancy agreements. As a result, landlords (and in particular, receivers, who do not necessarily know who is in occupation of the properties they manage) will need to be even more thorough in investigating the identity of the residents – are they squatters in the true sense of the word, or do they believe that they have a right to live in the property by way of a tenancy agreement or licence?

It is unlikely that the police will want to become involved in dealing with any properties where it appears that there may be a tenancy agreement in place and the usual civil route will need to be followed in these cases.

Police

Several groups have raised the question as to whether the police have the resources to deal with squatters. While it has been agreed that police forces will provide training for their officers before the new legislation comes into force the police’s already tight budget and other criminal priorities puts into question how high on their list of priorities squatters are going to be come September.

Only time will tell whether the criminalisation of something that has previously been considered a civil matter may prove a deterrent to squatters. Also, as the provisions only apply to residential buildings, landlords of commercial premises may need to take extra precautions with their empty properties as we may find an influx of squatters into commercial premises.

Considering the conflicting resources and priorities of the police as well as the need to prove to the police that the trespasser is in the property without permission, landlords may well be advised to continue using the civil routes except in the most cut and dry of cases.