Turns out that in the forthcoming Legal Aid, Sentencing, and Prosecution of Offenders Bill, the squatting of any premises whatsoever is to become a criminal offence in the UK. The rationale for this seems to be based on a number of media-reported-ad-nauseam cases in which gangs of criminals installed themselves into peoples' homes, trashed the place, drank their wine and then, when the Police were called on this, produced fraudulent tenancy agreements to claim they had a right to be there.

The Police then became convinced that "it was a civil matter" and just wandered off.

As such, Grant Shapps, minister for housing, and Theresa May, she of the almighty argument over cats and illegal immigration (I'll explain later), decided that Something Must Be Done and proposed this.

What is proposed is that it will henceforth be a criminal offence to squat in any premises whatsoever for any reason, punishable by a prison sentence in certain cases. This gathered large amounts of support from homeowners, Daily Mail readers, and also from property developers who do not want to have to spend money on legal action against squatters on the land or premises they are aiming to develop because, well, it involves time, and effort, and paying lawyers. Opposition, though, comes from the left, self-proclaimed anarchists, the homelessness charity Shelter, and similar charities including Crisis and also a confederation of lawyers to which I semi-signed up. The rationale from the supporters was that legislation is needed to protect homeowners and lawful residents of premises from these nefarious people. Opposition was on the grounds that, firstly, there's a housing crisis, that lots of premises, both residential and commercial, are sitting empty and this is just not on when there's a housing crisis, that political squatting as a form of protest will be squelched, or that it's just plain old class warfare. For the most part, anyhow.

Thing is, though, leaving aside all notions of freedom, justice, and sticking it to The Man, there is to my mind, and to lots of other peoples' minds actually, one huge, glaring problem with what's proposed (I), and as a result of this, why the proposed criminalisation of all squatting would be ineffective, superfluous, and even abusive (II).

I - Criminal Sanctions Already Exist

Because it rather is. I'll explain how in part (A), and then in part (B) explain why this is seen as such a problem, when in fact it is not in the grand scheme of things

A - There's legislation in place...

In the form of Section 6 of the Criminal Law Act 1977. This section renders it an offence to use violence or to threaten to use violence against person or property for the purpose of securing entry to premises occupied by another. You are therefore committing an offence under this section, technically, if you break into premises to squat there and do so by forcing entry. Furthermore, there is a specific provision in this very section whereby it is a defence if a "displaced residential occupier" or a "protected intending occupier", or a person acting on behalf of them, then proceeds to forcibly turf them out.

A "displaced residential occupier" is anyone who would normally occupy those premises as their only or principal home. This would be an owner occupier, for instance, but also a tenant using it as their only or principal home. So if you own your home and come home one day to find it's been overrun by squatters, in theory you could simply round them up and chuck them out yourself. But in practice this is ill advised owing to concepts of reasonable force and suchlike, and one really does not want to find oneself before the Crown Court for being a bit too enthusiastic in this respect. One is instead advised to call the Police and explain how one is a displaced residential occupier. Similarly, a "protected intending occupier" is a person who has not taken possession of the premises yet but has the legal right to do so at any time now. This would include, for instance, a person who has just completed on buying a house and where the previous occupants have given up possession in line with their sale of it, but the buyer's not moved in yet.

Furthermore, if one reads on to Section 7 of that same Act, one will note that an offence is committed by anyone who continues to unlawfully occupy residential premises of a displaced residential occupier or protected intending occupier when asked to leave by that displaced residential/protected intending occupier. As such, the squatting of someone else's home is clearly already a criminal offence.

B - ...it's just not enforced.

I may have advised above that you should call the Police if you return to your home and find squatters infesting in it, but nineteen times out of twenty, this will not benefit you.

This is despite the offences of violence to secure entry and adversely occupying residential premises being in place for over 30 years, the Police will most likely shrug their shoulders and claim that "it's a civil matter." This is, incidentally, also usually the reaction they exhibit when a (lawful) tenant suffers an unlawful eviction from their landlord.

I honestly cannot fathom why this is. The squatting of residential premises usually, if the news reports on cases like this are to be believed, involves not only the above offences but also criminal damage, most likely, as the squatters try to get in, theft, abstraction of electricity, and various other offences depending on the case. I suspect it is because of a mixture of misinformation and ignorance. You see, the laws on landlord and tenant and also on property in general are quite tough to get to grips with and encompass both civil and criminal spheres. I recall learning land law at university and wrestling with a grey tome called "Elements of Land Law" by Grey & Grey which weighed the same as a breeze block. It is this complexity (there is a reason why in England and Wales one generally retains a solicitor to buy and sell land) which is the first thing that puts off Police officers from stepping in in these circumstances. The other is a concept that squatters have rights, which is half-true in that if someone squats in any premises for 12 years without action by the proprietor (and complies with notice requirements to register their interest in adverse possession, thus rendering it in practice all but impossible), then they gain legal rights over the premises. As such, given that there's a load of squatters in the property facing them and a very angry homeowner alongside them exhorting the Police officer to Do Something, it is not really surprising that the Police officer in question will take the "it's a civil matter" lifeboat.

Also, from a practical viewpoint, if the squatters are determined and tenacious and possibly even violent, the Police would no doubt have to call for extensive backup to clear the place, which is not an operation that can be undertaken at a moment's notice. But to my mind this does not excuse their inaction, as such an operation can be planned to arrest them and charge them if they will not, for instance, leave within a short time period.

II - Existing Civil Remedies Already Satisfactory

As the Police tend to say that it is a civil matter, there are indeed civil remedies available to proprietors of both residential and commercial premises that are taken over by squatters. These civil remedies also render the proposed legislation unnecessary. Firstly, I will explain what civil remedies these are (A), and then explain in (B) why all the above is up to the task and what, to my mind, the real issue is.

A - Interim Possession Orders are Quite Enough

If one finds that one's premises, residential or otherwise, is squatted and the squatters will not leave, an Interim Possession Order is how one gets rid of them.

What it is is a special type of order that can be granted only against trespassers and which requires the squatters to leave within 24 hours of service upon them of the order, and if they do not, they are committing a criminal offence. If the Judge on an application by a proprietor is satisfied that the persons in the premises entered as trespassers and have no right to continue to occupy the premises then the Judge is bound to grant this order. Needless to say, it is a very draconian order to grant and as such the procedure for obtaining such an order is very strict. The proprietor must make his application within 28 days of discovering the trespassers in the premises. The application must be served on the trespassers both by putting it through the door and nailing the application and notice of hearing to the door as well. There must be clear evidence that the proprietor is in fact the lawful owner or tenant of the premises which must be lodged at Court with the application. And the proprietor must be willing to grant undertakings to the Court that if an Interim Possession Order is granted, they will leave alone all possessions of the defendants pending a further hearing in 7 days at which the Court will review the order on evidence from all parties and either make it into a final possession order or discharge it.

As such, one should obtain legal advice before attempting to make an application for an Interim Possession Order. It is a very finicky thing to get right and if the Judge is not satisfied that any of the legal or procedural requirements have been dealt with, he can simply dismiss it.

It is, however, exceptionally speedy given the timescales involved. Even in my local County Court, which is woefully inefficient and about which I have had to complain twice for losing consent orders containing settlements on cases, hearings of applications for IPOs take place usually in under 7 days of the application being made. (Bear in mind that normally for possession proceedings one must first serve notice, then the hearing is usually listed on 28 days' notice of the claim for possession being made.) Then there will be a final hearing in just 7 days. As such the entire process of getting out your squatters, if done correctly, takes around two weeks at most, provided all the paperwork is up to scratch.

And even if the Police have said it is a civil matter when you called them before over your residential squatters, they can be under no illusion of the same once an IPO is in force and the squatters are refusing to leave. The IPO says on its face that failing to comply with this order is an offence in and of itself, and is sealed by the Court.

As such, if done properly the suffering and prejudice of the proprietor or resident is already kept to a minimum.

B - Further Legislation is Not Necessary

What the proposed legislation to criminalise squatting therefore means is that all squatting will be an offence. It is clear from the above that it will be unnecessary as there are already sufficient remedies, both civil and criminal, to deal with the matter.

Furthermore, as can be seen from the Police's insistence that this sort of thing is "a civil matter," the problem is not one of legislation. The problem is one of enforcement. It would be strongly recommended to Mr Shapps that the money and time spent on introducing this legislation instead be spent on training Police officers as regards the law on squatting in peoples' homes. This would not only mean that the Police would be more aware of, and more likely to enforce, the laws that already exist but also that there wouldn't be a public perception of squatters as somehow untouchable. I dare say it would also possibly mean less in the way of violence and breaches of the peace as irate and exasperated residents attempt to forcibly eject the squatters.

I cannot help but consider that these provisions proposed are little more than an attempt to send a message. I do not think that they will genuinely cut down on squatting in occupied residential premises, which, in any event, is a comparatively rare occurrence. It should also be noted that I am somewhat disappointed (but not surprised) in the Coalition government's adoption of this stance, given that for the 13 years they were in opposition both Tories and Liberal Democrats regularly and rightly criticised the then incumbent New Labour government over its legislative diarrhoea and penchant for using ill-thought-out legislation to send a message.

Further, I also have reservations that this law will have severe and unintended consequences. Aside from the concerns over occupation as protest, and its future legitimacy, there is something more mundane that ought to be addressed. For some reason, it is a long-held urban legend that lawful tenants who fall behind with their rent, or who stay on after the tenancy agreement expires (which they are perfectly entitled to do), are squatters. There was a colossal wrangle in the summer of 2010 about this when GMTV adopted this attitude in the sake of a good story, claiming a lawful tenant was a squatter for some inexplicable reason (and the adoption by the landlord of victim playing to boot). Armed with legislation making all squatting a criminal offence, unscrupulous, ignorant, or just plain Rachmanite landlords may attempt to claim squatting in an effort to escape sanction for carrying out an unlawful eviction.

Unfortunately it seems that this is likely to go ahead. Upon being presented with a letter in various broadsheet newspapers signed by a whole array of property, housing, and landlord & tenant lawyers explaining exactly what I have said above, Grant Shapps's response was to snarkily put on Twitter a post about how lawyers are out of touch with common people.


(IRON NODER 2011, 12/30)

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