With effect from 1 September 2012, Section 144 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 created a new offence of squatting in a residential building in England and Wales.
The intention of the new legislation is to protect owners and lawful occupiers of any type of residential building. It will also protect landlords, second homeowners and local authorities who discover trespassers living in a residential building that they own or control, even if no one was living there at the time the trespassers occupied the building.
A person can only commit the offence in the following circumstances:
- They are in a residential building as a trespasser, having entered the building as a trespasser (which could have occurred prior to 1 September 2012);
- They know or ought to have known that they are a trespasser and;
- They are living in the building or intend to live there for any period of time.
The offence will not apply where a person enters a building with permission of the owner, such as a legitimate tenant, even where that tenant holds over at the end of a tenancy or licence agreement. The offence will only capture those persons whose original entry and occupation of the building was unauthorised.
Where a person enters the property in good faith reasonably believing that they had permission to do so, the offence will not apply. Therefore where an unsuspecting tenant occupies a property on the promise of a bogus landlord or agent, the offence will not apply as long as the tenant can evidence a tenancy agreement or documentation on which they relied.
The offence requires that the trespasser 'is living' or 'intends to live' in the property for a period of time. Therefore the offence does not arise where a person is only momentarily in the building or has no intention of living there.
A residential building is defined within the Act as any structure or part of a structure which has been designed or adapted for use as a place to live. This can include temporary or moveable structures which would include park homes, caravans or residential pre-fabs. The building must have been designed or adapted before the time of entry, for use as a place to live. Therefore the offence will not apply where a trespasser enters a non-residential property and uses it as a dwelling by placing bedding and personal effects in the building.
This is a criminal offence and therefore where the circumstances are such that the offence arises, the owner of the property will need to report the matter to the police. Sections 17 and 24 of the Police and Criminal Evidence Act 1984 have been amended to provide the police with the power to enter and search property for the purposes of arresting a person for the offence of squatting in a residential property and also give them a power of arrest.
The offence carries a maximum penalty of imprisonment of six months and/or a fine of up to £5,000 on conviction. The first conviction under the new offence has already been reported which resulted in the offender being jailed for 12 weeks as a result of his trespass.
Whilst criminalising squatting in residential property is in theory good news, it may lead to persons looking to squat in commercial property instead where the new offence does not apply.
In practice the police are going to be required to judge the situation and make a decision quickly. In order for the offence to arise, there are strict conditions which need to be met. It is anticipated that where there is any doubt that the person entered or is in the property as a trespasser, or where that occupier alleges that they have consent of the owner to be in the property and/or provide evidence of some form of consent such as a tenancy agreement, it is unlikely that the police will proceed with an arrest for the offence of squatting. The police are only likely to act in the very clearest of circumstances. Clients may find that the police are reluctant to intervene and clients will need to pursue a civil claim as was the position prior to the new offence being introduced.
The police operate under a tight budget with limited resources and therefore it is questionable whether the criminalisation of squatting will be high on their agenda. It may be found that the civil route to possession of property from squatters remains in many instances the most viable option.