Business Law: Will Oakes explains new legislation on squatting

SECTION 144 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 came into force on September 1 and creates a new offence of squatting in a residential building.

The new offence is committed where: a person is in a residential building as a trespasser, having entered it as a trespasser; knows or ought to know that he or she is a trespasser; and is living in the building or intends to live there for any period.

It is irrelevant whether the person entered the building as a trespasser before the commencement of section 144. However, the offence will not be committed by anyone holding over after the end of a lease or licence, even if they leave and re-enter.

Some commercial property owners and practitioners will be disappointed that the new offence will only extend to residential properties. However, in its response to the consultation conducted ahead of the new law, the Ministry of Justice said it had decided to tackle squatting in residential buildings as a “first step”, given this type of squatting causes the greatest distress.

The MoJ will also look at how to improve both the current civil procedures and the enforcement of existing criminal offences (such as criminal damage and burglary) as a means of dealing with squatting in commercial buildings that are in use.

Some commentators have criticised the perceived aggression in the Government’s decision to criminalise what were previously civil offences. Others have suggested that squatting is a last resort for people who, but for the shortage of social housing, would be homed by the Government.

My experience of squatters, however, has invariably been that they are highly informed and well organised groups of individuals who know the law and exploit its weakness to occupy often high value property without having to pay for the privilege. Once a court order is obtained against them they leave the property, often in a damaged condition, and move on to the next one. Property owners meanwhile are left having to fund legal costs, repair bills and suffering a loss of rent for while the matter is resolved lawfully.

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Squatting is by its nature a transient and temporary phenomenon, it is not an option relied upon by families who are waiting to be housed by their local council. In any event “tolerated” squatters indulged by benign landlords will not be affected by this new law because, in those instances, there will be no complaint to the police.

However, for the time being, the law is unchanged in the context of commercial property and commercial landlords faced with squatters must rely on civil procedure to assist them.

: : Will Oakes is a specialist in civil and commercial litigation at Attwells Solicitors.