Squatters - What to do: a practical guide to dealing with squatters

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  • Squatters - What to do A practical guide to dealing with squatters

    January 2016

    Squatting in a Residential Building

    Since the 1 September 2012 squatting in a Residential Building has been a criminal offence with squatters facing up to six months in jail and/or up to a 5000 fine.

    Section 144 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 provides that a person commits an offence if:

    The person is in a Residential Building as a trespasser having entered as a trespasser;

    The person knows or ought to know that he or she is a trespasser; and

    The person is living in the Residential Building or intends to live there for any period.

    For the purposes of Section 144 a Building is defined to include any structure or part of a structure (including a temporary or moveable structure) and a Building is Residential if it is designated or adapted before the time of entry, for use as a place to live.

    The above does not apply to a person holding over after the end of a tenancy or licence (even if that person leaves and re-enters the Building).

    So what does a landowner do if he finds squatters in his Residential Building?

    The starting point is to speak to the squatters to explain the law and to advise them that unless they leave immediately the police will be called.

    If the squatters fail to leave a landowner should call the Police or attend the local police station with evidence of ownership of the Residential Building (i.e. office copy entries of the freehold/leasehold title or copy lease or tenancy agreement), explain to the Police what has happened and ask the Police to arrest the squatters. As the new law has been in force for some 3 years the Police should be aware of it and should act. In all probability, there will be no arrests because once the Police attend the Residential Building and speak to the squatters the squatters will quickly pack their bags and leave.

    Once the landowner has possession of the Residential Building it is important that the locks to all external doors are changed and steps are taken to increase security i.e. to screw windows to the window frames, if the building is waiting to be demolished to board up windows etc.

    Is the new law effective? Generally speaking, yes.

    When the new law was introduced the main squatting advisory websites were not happy: accusing the government of bringing in the new law against a background of media myths and not dealing with the underlying problem of lack of affordable housing. However, the good news is that they advised against squatting in Residential Buildings.

    Unfortunately, it would appear that the new law is not known by everyone. In September 2015 (3 years after the new law had been introduced) the Metropolitan Police revealed statistics that 211 people had been taken to court for squatting in Residential Buildings.

    Squatting in commercial premises/private land

    A landowner can use his common law rights to recover land (i.e. the tort of trespass against land) by evicting a trespasser (squatter) from his land.

    Contact:

    Peter Ling Chartered Legal Executive Real Estate Dispute Resolution T: +44 (0)20 3755 5574 E: peter.ling@howardkennedy.com

    howardkennedy.com

  • Case law has established that a trespasser who enters land peaceably is entitled to a request to leave the land and if the trespasser refuses to leave the landowner is entitled to forcibly remove the trespasser using no more force than is reasonably necessary. Whenever a landowner is considering the use of these common law powers he should notify the police of his intention so that police officers can be present to prevent any breach of the peace.

    However, these common law powers have been limited by statute: in particular Section 6 of the Criminal Law Act 1977.

    Once entry has been gained to commercial premises or private land and possession secured, experienced squatters will display what is known as a Section 6 Notice. Briefly, a Section 6 Notice reminds the landowner of Section 6 of the Criminal Law Act 1977 which provides that any person who, without lawful authority, uses or threatens violence for the purpose of securing entry into any premises for himself or for any other person is guilty of an offence, provided that:-

    There is someone present on those premises at the time who is opposed to the entry which the violence is intended to secure; and

    The person using or threatening the violence knows that that is the case.

    Therefore a landowner is not able to resort to his common law rights to obtain possession of his premises if the squatters resist. To quote Section 6(6) A constable in uniform may arrest without warrant anyone who is, or whom he, with reasonable cause, suspects to be, guilty of an offence under this section.

    If the squatters leave the premises unoccupied a landowner can lawfully retake possession. This is the reason why squatter websites always advise that squatters should squat in groups of at least two thus ensuring that at least one squatter is always in occupation. However, for the reasons set out above self-help should only be used with caution.

    The reality is that these common law rights are only successfully used in the simplest of cases (normally with inexperienced squatters who do not know the law).

    Initially it may be worth trying to speak to the squatters to explain the law and to advise them that unless they leave immediately action will be taken to evict them. Often, negotiation can result in a mutually satisfactory result, particularly if it includes a modest payment to the squatters.

    Squatter possession proceedings in the local County Court

    If all else fails a landowner may have little option but to commence squatter proceedings in the local County Court. There are two types of squatter proceedings:

    A straightforward claim for possession based upon trespass, and

    A claim for possession based upon the Interim Possession Order (IPO) procedure. Squatter proceedings can prove to be quite technical (in procedure) and thus it is recommended that

    at this stage legal advice is obtained.

    Note:

    For the purpose of this note a Landowner means the person entitled to immediate possession of the land be it the freehold owner, lessee or tenant

    There are other remedies available to a landowner. This note focuses upon the main remedies used by landowners

    If in doubt always obtain legal advice.

    If you would like more information on our services, please visit www.howardkennedy.com here you will find all our latest news, publications and events. This material is for general information only and is not intended to provide legal advice. Howard Kennedy, 2016