Question: Do I still need to bring civil proceedings?
I own a number of flats which I rent out. I have encountered squatters in my properties on a number of occasions, and have had to bring court proceedings to remove them. I understand that the law on squatting has recently changed and that squatting has now become a criminal offence. Is that right? If so, does the change mean that, in future, I will not need to bring civil proceedings in order to secure possession of my properties?
Answer
The law has changed from 1 September 2012 so that squatting can be a criminal offence. Whether in practice this means that there will be less need to bring civil proceedings in circumstances where an offence has been committed will largely depend on the extent to which the new law is enforced by the police.
Explanation
Section 144 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (the 2012 Act) came into force on 1 September 2012. It creates an offence of squatting in a residential building. This offence is committed if a person (a) is in a residential building as a trespasser having entered it as a trespasser, (b) knows or ought to know that he or she is a trespasser, and (c) is living in the building or intends to live there for any period. The offence is not committed by a person holding over after the end of a lease or licence, even if the person leaves and re-enters the building.
A person convicted under section 144 faces imprisonment for up to six months or a fine of up to £5,000, or both. It is irrelevant whether the person entered the building as a trespasser before or after the commencement of the section. Further, under section 17 of the Police and Criminal Evidence Act 1984, a constable may enter and search any premises for the purpose of arresting a person for an offence under section 144.
It is not yet clear to what extent the introduction of this criminal offence will in practice obviate the need for landlords and others to bring civil proceedings. For many years there has been an offence relating to entering and remaining on property as a squatter under the Criminal Law Act 1977 (the 1977 Act).
This provides (at section 7) that any person who is on any premises as a trespasser after having entered as such is guilty of an offence if he fails to leave those premises on being required to do so by or on behalf of a “displaced residential occupier of the premises” (see section 12(3)) or an individual who is a “protected intending occupier” of the premises (see section 12A).
However, this procedure has not always been used when it could have been, something that the Metropolitan Police Service recognised in its response to the Ministry of Justice’s consultation CP12/2011 Options for dealing with squatting.
Section 144 of the 2012 Act is wider in scope than section 7 of the 1977 Act (criminalising the act of squatting in itself rather than a failure to leave on request) and procedurally more straightforward. In the circumstances, it may be that it is more widely enforced than section 7 of the 1977 Act was, but it is too early to tell.
Will police help remove squatters from offices?
Question
I own a small office premises which is vacant. I recently found somebody living at the premises. The property is not in my view suitable for living in, but it does have washroom facilities and a microwave. I want to market the property as soon as possible. Will the police help me to remove the occupier? If not, how long is a claim in the civil courts likely to take?
Answer
Section 144 of the 2012 Act only applies to residential buildings. However, civil proceedings should not, in principle, take long – assuming that the occupier does not have a defence to your claim with any real prospect of succeeding.
Explanation
Although section 144 of the 2012 Act creates a new criminal offence of squatting in a residential building, a building is only “residential” for the purpose of that Act if it is “designed or adapted, before the time of entry, for use as a place to live” (see section 144(3)(b)). It therefore seems unlikely that the police would consider removing the occupier under that Act. Equally, section 7 of the 1977 Act and section 61 of the Criminal Justice and Public Order Act 1994 (the 1994 Act) are unlikely to be of assistance.
Nevertheless, civil proceedings should not, in principle, take long. Compared with a standard possession claim – where the hearing date will be at least 28 days after issue of the claim form (CPR 55.5(3)(a)) – a claim against a trespasser requires either two days (non-residential property) or five days (residential property) between service of the claim and the hearing date. However, in practice, hearings often take place around two to four weeks after the issue of the claim and there can be a similar delay after the order is made in securing a bailiff’s appointment for enforcement.
An application may also be brought for an interim possession order (IPO). This requires the defendant to vacate the premises within 24 hours of service of the order (see CPR 55.20-55.28). Under CPR 55.22, the hearing of an IPO application will take place not less than three days after the date of issue. It is worthwhile noting that the making of an IPO raises the prospect of the trespasser committing an offence if he remains at the premises (see section 76 of the 1994 Act). However, problems are sometimes encountered in relation to enforcement by the police.
In terms of the overall length of time that it should take to obtain a possession order, much will depend on the court in which you issue your claim, whether or not you apply for an IPO and whether or not the occupier has any defence to your claim that has a real prospect of succeeding. Assuming that there is no valid defence when dealing with a claim against trespassers, the court should normally make an order for possession to take effect at once (“forthwith”): see McPhail v Persons, Names Unknown [1973] Ch 447.
Olivier Kalfon is a barrister at Enterprise Chambers and Emma Humphreys is a partner at Charles Russell LLP
• E-mail questions to egq&a@enterprisechambers.com and egq&a@charlesrussell.co.uk
