What do the new squatting laws mean for landlords?

Landlord Expert
By Landlord Expert November 15, 2012 07:10

The government's decision to introduce new legislation to criminalise squatting in residential buildings throughout England and Wales has been met with much interest. Opponents on one side argue that there isn't enough hard evidence to justify the need for the new powers, while proponents on the other are calling for the legislation to be extended to include commercial properties. Though the legislation has been in force for only a few weeks, it has already been used by both private landlords and local authorities.

The sentencing of the first person under the legislation – for squatting in a residential unit owned by housing association London & Quadrant – has provided some clues as to how the courts will use these powers in future. However, this fairly straightforward case is not ideal for analysing how effective the powers will be in the long term. Grey areas surrounding some of the important definitions within the legislation may still mean that its use is relatively limited, and much will depend on how the police decide to enforce the offence in practice.

A history of squatting

In 1977, the introduction of both the Criminal Law Act and Protection from Eviction Act made it an offence to threaten or use violence to enter a property where someone is present and opposes the entry. This reduced the options that landlords had in attempting to physically remove trespassers from their property. The outcome has been that, in many cases, costly and time-consuming civil remedies have been the only option to remove a squatter.

However, while there was a level of protection for squatters in empty properties, most people don't realise that in certain circumstances squatting was already a criminal offence – particularly in cases where a squatter's actions affect the rights of an existing tenant or lawful occupier.

The new legislation has been designed to provide increased protection, specifically to residential landlords who own properties that may lie vacant for a period of time, pending re-let or sale. In practice, this means local authorities and property investment companies are likely to be the main beneficiaries.

What has changed?

The new anti-squatting provisions are found in section 144 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012. The act makes it an offence for an individual to enter a residential building, in the knowledge that they are trespassing on that property. The police can arrest and remove trespassers, as long as it can be shown that the trespassers intend to live in the premises.

However, the effectiveness of the legislation from a landlord's point of view could be limited by its relatively narrow definition of a squatter. The act does not apply to previous or current tenants who have not paid their rent, or have stayed on after the end of a tenancy. Though landlords may have hoped to use the strengthened laws as a way to evict tenants who habitually fail to pay rent or refuse to move out when requested, this is not its intended purpose.

What's more, it may be difficult for the police to establish the difference between a squatter and a tenant who is "holding over" when called upon by a landlord to remove an individual from a property. This in turn may make many police forces reluctant to get involved in cases where it is not immediately clear if an individual actually is a squatter.

Will the new legislation work?

Nevertheless, the 12-week jail term handed out to the London & Quadrant squatter may appear to be a positive sign for landlords, but it is unlikely that many future cases will be as straightforward as this one. The police only realised the individual was squatting following his arrest for another offence; he and two others found with him freely admitted to squatting and gave their address as the premise in which they were illegally residing.

Regular squatters are quick to learn how to exploit loopholes and in future are likely to be more apt in their tactics to avoid being charged under the new rules. There are a variety of tactics that squatters could conceivably use to deny wrongdoing – from claiming to have been squatting in an attached commercial unit, to pleading that they have been the victim of a fraudulent letting. In such cases, it may be difficult for the police officers on the scene to justify making an arrest.

So, while the first sentencing under the new legislation has shown that the courts won't be afraid to come down heavily in cases where it is clear that the defendant is guilty, there are many contentious areas regarding the legislation that could yet limit the effectiveness of section 144.

Michael Whitworth is an associate in real estate at national law firm DWF

Landlord Expert
By Landlord Expert November 15, 2012 07:10

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