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The Legal Aid, Sentencing and Punishment of Offenders Act 2012 received Royal Assent on 1 May 2012. This controversial piece of legislation has many faults but there it contains, at least, some positive news for residential property owners (and mortgagees in possession and LPA Receivers) in relation to squatters.

Section 144 of the Act creates a new criminal offence of squatting in a residential building. A person commits an offence if he has entered into a residential building as a trespasser, knows or ought to know that he is a trespasser and is living in the building or intends to live there for any period of time. If convicted of an offence, the squatter can face up to one year in prison and/or a fine of up to £5000.

This is obviously a welcome development. The Act should in theory enable residential property owners, mortgagees in possession and LPA Receivers to obtain possession from squatters without having to incur the time and costs involved in going down the Court route. Common law bailiff actions are of course off limits where persons are in residential occupation due to protection from eviction legislation.

That said, there are concerns that the Act does not go far enough. For example, the Act does not extend to commercial properties. The government has not provided any real explanation as to why a distinction has been drawn between residential and commercial properties and we will wait and see whether the Act is extended in the future.

In practice, there is also certainly scope for squatters to argue their way around the new offence by relying on the rather loose requirement that a person must “know or ought to have known” that he/she was a trespasser. It wouldn’t come as a surprise if a well informed squatter produces a fictitious AST and the police may be reluctant to actually use these powers in such situations. The property owner would then be left with no option but to issue proceedings at Court. Mortgagees and LPA Receivers may also have difficulty relying on the offence in situations where the occupants claim to have been allowed to occupy the property by the landlord (who has invariably disappeared).

Mortgagees/LPA Receivers will have difficulty proving otherwise and are likely to have no option but to proceed through the Courts particularly as all elements of the new offence will need to be proven to a criminal standard. Finally there is the issue of persuading the police to act. There are of course powers already available for the police to summarily eject squatters who have caused damage on entering property or where the act of squatting leads to lawful residential occupiers being displaced. However unless they are dealing with a high profile situation or one which threatens public disorder they have traditionally been reluctant to become involved, claiming such issues are “civil matters”. Ultimately such legislation needs to be coupled with strong guidelines to the police in order to be effective, We await with interest the first cases once the new offence becomes operational.

Andrew Thorncroft - Solicitor, Banking, Finance and Professional Negligence, Manchester