Pedants relish pointing out that signs saying “Trespassers will be prosecuted” are incorrect – trespass is a civil wrong and not a criminal offence. Trespassers may be the subject of possession proceedings or damages claims but they will not be prosecuted. Now, however, from 1 September 2012, trespassers will.

The new offence

Tucked away in the Legal Aid, Sentencing and Punishment of Offenders Act 2012, section 144 creates a new trespassing offence. The main features are these:

  • The offence relates only to residential buildings and not to open land or commercial property.
  • “Building” can include temporary structures, including park homes and caravans.
  • The person must be in the building knowingly as a trespasser – they do not own or lease the premises and have no existing right or permission to be there. The person must also intend to live in the building; just delivering junk mail will not be caught.
  • The offence will not be committed by someone who has failed to vacate after the end of a lease, tenancy, licence or permission.
  • The police have powers to enter and search a residential building and may arrest a suspected offender. Punishment is up to 6 months in prison and/or a fine of up to £5,000.

Other offences

This is not the first time that squatting or trespassing has been criminalised. Breaking into or damaging a property or its contents have long been offences. The Interim Possession Order which makes it an offence to fail to leave a property within 24 hours of the order was introduced in 1994. The Criminal Law Act 1977 makes it an offence for someone to fail to leave residential property after being requested to do so by a “displaced residential occupier”, protecting home-owners moving in or returning home from the shops or holiday to find a trespasser occupying.

Steps to take

It is not advisable to evict trespassers personally. A property-owner threatening or using violence to gain entry where someone is on the premises opposing that entry (including a squatter) will be guilty of an offence.

The best course is to inform the police and/or take civil proceedings. Whether the police will take action will depend on circumstances and resources. The new law was not uncontroversial. There was concern over home owners being shut out by people who have no right to be there, but many felt that the law already provided sufficient protection and remedies; to do more could tip the balance against the vulnerable and homeless. Guidance exists for the police to liaise with homeless and housing organisations and local authorities, and develop ways to protect such groups.

Whether or not there will be many prosecutions under the new legislation remains to be seen. But at least the next time a “know-it-all” says that trespassers can’t be prosecuted, the answer is they can.