SQUATTING AND THE LAW: CRIMINALISATION OF HOMELESSNESS?
Updated: Jan 25, 2021
Squatting is generally defined as entering land or a building as a trespasser and living there, or intending to live there. English law has never labelled squatting itself as a criminal offence. The main remedy available to a premises manager whose property has been occupied has, until 2012, been an action in the civil courts. There is also the remedy of re-entry, which enables a person entitled to possession to re-enter property provided that no more force than necessary is used to remove a squatter. This right was modified by the Criminal Law Act 1977 (CLA 1977), which, in summary, made it a criminal offence for anyone, other than a displaced residential occupier, to use or threaten violence for the purposes of securing entry to any premises occupied by another.
The CLA 1977 also stated that where a displaced residential occupier or a protected intending occupier told squatters to leave, the squatters committed an offence by remaining on the property. A “displaced residential occupier” is a person who has occupied the property as a residence but has been excluded by squatters. A “protected residential occupier” is someone who intends to occupy a property as a residence, has written evidence of that intention, and is prevented from moving in by squatters.
The law was significantly changed by s.144 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPOA 2012), which states, in summary, that a person commits an offence if he or she is in a residential building as a trespasser having entered it as a trespasser, and ought to know that he or she is a trespasser, and is living in the building or intends to live there for any period. This appears to be a clear and general criminalisation of squatting, and transfers enforcement from the civil courts to the criminal courts. But there are definitional issues with the new offence, which remain to be interpreted by the courts.
“Building” is defined as any structure or part of a structure, including a temporary or moveable structure. A building is “residential” if it is designed or adapted, before the time of entry, for use as a place to live. A trespasser who modifies a non-residential building by, for example, placing bedding in it, will not be committing an offence because the building had not been “adapted” before he or she entered it.
Section 144 of the LASPOA 2012 does not define “trespasser”. Trespass is an ancient common law concept, essentially amounting to an unjustifiable interference with the possession of land. Trespass to land normally takes the form of entering it without permission. It is no defence to show that the trespass was innocent, for example that the person entering honestly believed that the land belonged to him. Trespass to land is not normally a crime. The traditional sign, which states that trespassers will be prosecuted, has been described as the “wooden lie”. Any intentional, reckless or negligent entry will amount to a trespass.
The phrase “living or intending to live” in the property may be problematic. Its aim is to exclude people who are in the property momentarily or have no intention to live there. The Crown Prosecution Service gives the example of a person who enters the porch or hall of a home to deliver junk mail. That person is a trespasser but will not be covered by the new offence.
The new offence does not apply to previous or current tenants who have not paid their rent or who have stayed on after the end of a tenancy. In this connection, landlords will not be able to use the new law to evict tenants who have habitually failed to pay rent or to vacate premises. The distinction between a tenant and a squatter may not always be clear.
Where the offence applies, the police have power to enter and search premises to make an arrest where they have reasonable grounds for believing that an offence has been committed. Anyone found guilty of the offence can be sentenced to a maximum of six months’ imprisonment or a £5000 fine, or both.
The Crown Prosecution Service has stated that a prosecution under the LASPOA 2012 must always be both necessary and appropriate. Public interest considerations in deciding whether or not to prosecute include the following.
• Whether entry was forced.
• Whether damage has been caused.
• Whether there has been use of gas, electricity or water.
• Whether other options were available to the squatter.
• The mental health of the suspect.
The first reported prosecution under s.144 of the LASPOA 2012 was that of three squatters at a property in Pimlico owned by London and Quadrant, a housing association managing homes throughout Greater London and the Southeast. The property became vacant in August 2012. The association’s staff was showing people around the property when they discovered that three squatters were on the premises. London and Quadrant started civil proceedings to remove the squatters. The police arrested one of the squatters for an unrelated matter. He took them to the property and all three were arrested and charged with offences under s.144 of the LASPOA 2012. The arrests were made on 2 September 2012; the day after the section came into force. Alex Haigh, one of the squatters was sentenced to 12 weeks’ imprisonment. The others were fined.
London and Quadrant is reported to have stated after the case that after it had begun its own action to seek the removal of the squatters under previous legislation, the police informed the association that they had arrested the people concerned.
A spokesperson for the local authority is reported to have stated that the new powers had helped to speed up the process of removing squatters who illegally occupy homes and enable social housing providers to make properties available again for people on housing lists more quickly than was previously possible. The authority supported the police action and the fact that the house was now made available to someone genuinely in need who was waiting for a home.
The borderline between residential and non-residential property may not always be clear. The question of the application of the new law to properties of mixed use remains to be resolved. But where a property is definitely non-residential (that is, commercial), other offences may be involved, for example:
• causing criminal damage when entering or occupying the premises
• failing to comply with a court order to leave
• unauthorised use of utilities.
Premises managers of commercial properties can apply to a court for an interim possession order (IPO) as a matter of urgency. Squatters who fail comply with an IPO within 24 hours are committing a criminal offence. An IPO cannot be issued if a claim for compensation is also being made, if more than 28 days have passed since the landowner knew about the squatters, or against former tenants, subtenants or licensees.
A spokesperson for the British Property Federation is reported to have commented that the increased threat of squatting in commercial properties would leave some landowners with no choice but to demolish their buildings.