It is an offence, from 1 September 2012, for any person to “squat” in a residential building in England and Wales. The new offence is to provide Home owners (including second homes), Landlords and Tenants (who have a legitimate Tenancy Agreement) with an alternative remedy to recover their homes from trespassers.
Having read the communications sent out by the Government, we are of the view that an LPA Receiver (who acts as agent of a borrower on a buy to let property) would be classed as a Landlord. However Mortgage Companies would not be classed as a Home owner or a Landlord unless they were a mortgagee in possession of the property or were selling the property.
The offence is committed once a trespasser has entered the residential building and “knows or ought to know” that they are a trespasser and they are living or intend to live at the property for any period of time.
The offence is only committed if the person in occupation remains in the property as a trespasser.
Any person given permission to be on the property or a tenant under an Assured Shorthold Tenancy Agreement (AST) or holding over after the AST has ended or where the tenant is in rent arrears would not be committing an offence.
Any person who enters a property in “good faith” will not be committing an offence.
As the legislation is retrospective, an offence could have been committed by any persons in occupation as trespassers prior to 1 September.
Powers of the Police
Powers have been given for a uniformed Police officer (under Section 16 of PACE) to enter and search the property for the purpose of arresting a person for the offence of squatting.
Penalty and circumstances
The Magistrates Court could hand down a maximum penalty of 6 months imprisonment or a fine of up to £5,000 or both depending on the circumstances of the case.
The circumstances could include damage done to the property when gaining access or damage to the interior of the property and even using the utilities at the property without the permission of the owner.
Displaced residential occupier or a protected intending occupier
An offence will also occur if the trespasser refuses to vacate the property when asked to do so by a displaced residential occupier or a protected intending occupier of the property. This would apply to the rightful/lawful owners being made homeless by the trespassers. A displaced residential occupier is an occupier currently living in the property and on returning from a day out or a holiday finds squatters in the property and they refuse to leave. Protected intending occupiers are defined as someone intending to move into the property but not currently living in the property.
Police court action
An LPA Receiver or a Limited company and/or a Letting-Managing agent could not be a displaced residential occupier or a protected intending occupier but could still report a trespasser to the Police being a Landlord having control over the property.
1. Speed of police response
What we do not know at this stage is how quickly the Police will act once a trespasser report has been made. It is likely that they will act quickly if a displaced residential occupier or a protected intending occupier is involved but they may be more reluctant in other cases. For example where the property is a buy to let which has previously been vacant and there are no other circumstances requiring immediate attention such as nuisance and disturbance caused by the occupiers, loud music and parties.
2. What happens when the Police attend at the property?
Statements would have to be given to the Police giving full background information about the property. For example, where a displaced residential occupier had been away from the property or on holiday and has come back to find the property occupied.
3. The criminal process
Do the Police have the resources and the time to respond in every case? As we are all aware Police numbers are being reduced through budget cuts and they are already over-stretched. In respect of the actual process of evicting the squatters via this route the legislation refers to a Magistrate Court hearing and an arrest of the trespasser but how this works in practice is unclear.
Will it be quicker to involve the Police and the Crown Prosecution Service rather than issuing Court possession proceedings via the County Court? As we normally obtain a hearing date within 7 days of being advised that there are squatters in the property it will be interesting to see how the criminal process compares to the civil process – only time will tell.
The fact is, this is new legislation to the Police as well and no doubt they will be “feeling their way”. We will therefore continue to monitor the position but our advice, at the present time, is to continue to commence County Court proceedings unless you are a displaced residential occupier or a protected intending occupier.