So squatting is now illegal…again. The debate has become very polarised and a lot of the reporting has totally missed the point. There has been a lot of comment on all sides, including by me, but now may be the time for a bit of a roundup.

Where We Were

Squatting was already a potential crime before the new legislation. Under the Criminal Law Act a home owner who was resident in a property or a tenant of that property who came back to find a squatter in their house could ask then to leave and if they refused to do so the Police could then arrest them. However, the Police, due to ignorance or policy, usually declined to do so and tended to treat the issue as a civil matter. Ultimately this has led to press reports of people coming back from holiday or out of hospital to find squatters in their house who they could not remove. In fact, if you could show you were a resident home owner you could actually employ a bailiff to come and remove the squatter using reasonable force without a court order. However, this is not well known either.

The problem was exacerbated by well-meaning but incompetent legal advice which pushed people into using the civil courts. Even then, there is a means to remove a squatter relatively quickly by way of an Interim Possession Order which will usually mean that it is all done in a couple of weeks. Therefore the press stories which talked of months taken through the courts were either missing some key information or were dealing with people who had been very badly advised.

The Rationale For Change

Given that home owners and tenants were already protected a lot of the rationale for the new legislation is doubtful. The only genuine beneficiaries are landlords and the former homes of the deceased (where squatting is a serious problem). That is not to say new legislation to protect these groups was not a good idea but they are a rather smaller group than was implied and they were certainly not the groups of people that were being put forward as needing protection.

The New Legislation

The new criminal offence of squatting is limited. I have been asked if this means that landlords are now no longer required to go to court to evict tenants who will not leave. The answer is no. Landlords still need to go to court to evict tenants, although there is a fear that some will now try to get the Police to do the job for them. The reason for this is simple, tenants are not squatters, even those who decline to leave. A squatter under the new legislation is someone who enters a residential property without the consent of the lawful owner or someone entitled to be there with the intention of using the property for living in.

Gaps

The new legislation does not protect commercial property in any way, although the old legislation did not do so either. However, the old legislation also covered gardens and outhouses while the new one does not, a slightly bizarre omission. There also remains a degree of uncertainty as to how the offence will be prosecuted if the squatter produces a fake tenancy agreement and claims to have been defrauded by a person who said they were a lettings agent. I expect that this will become a common tactic.

Conclusion

Private landlords and executors may feel comforted by the new legislation. However, the position arguably only changes if the Police decide to make it change by arresting people for squatting. There have been some early reports on Police websites of arrests but it remains to be seen whether this will be a longer term change or is just a flurry of first-day excitement. There is also the danger that less scrupulous landlords will try not to give tenancy agreements and will later turn round and accuse tenants of being squatters in order to have them removed. Time will tell.