Squatting in residential premises
Squatting in residential premises
Squatting in residential premises
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<strong>Squatt<strong>in</strong>g</strong> <strong>in</strong> <strong>residential</strong> <strong>premises</strong><br />
Standard Note: SN/SP/355<br />
Last updated: 24 October 2012<br />
Author: Wendy Wilson<br />
Section Social Policy Section<br />
This note outl<strong>in</strong>es the legal remedies (both civil and crim<strong>in</strong>al) that are available to landlords<br />
and homeowners to evict squatters from their properties <strong>in</strong> England and Wales.<br />
The Government consulted on possible ways of strengthen<strong>in</strong>g the law <strong>in</strong> this area <strong>in</strong> 2011.<br />
Subsequently, the Legal Aid, Sentenc<strong>in</strong>g and Punishment of Offenders Act 2012 was<br />
amended to <strong>in</strong>troduce a new offence of squatt<strong>in</strong>g <strong>in</strong> a <strong>residential</strong> build<strong>in</strong>g (section 144).<br />
Section 144 was brought <strong>in</strong>to force on 1 September 2012 by the Legal Aid, Sentenc<strong>in</strong>g and<br />
Punishment of Offenders Act 2012 (Commencement No.1) Order 2012 (SI 2012/1956).<br />
This <strong>in</strong>formation is provided to Members of Parliament <strong>in</strong> support of their parliamentary duties<br />
and is not <strong>in</strong>tended to address the specific circumstances of any particular <strong>in</strong>dividual. It should<br />
not be relied upon as be<strong>in</strong>g up to date; the law or policies may have changed s<strong>in</strong>ce it was last<br />
updated; and it should not be relied upon as legal or professional advice or as a substitute for<br />
it. A suitably qualified professional should be consulted if specific advice or <strong>in</strong>formation is<br />
required.<br />
This <strong>in</strong>formation is provided subject to our general terms and conditions which are available<br />
onl<strong>in</strong>e or may be provided on request <strong>in</strong> hard copy. Authors are available to discuss the<br />
content of this brief<strong>in</strong>g with Members and their staff, but not with the general public.
Contents<br />
1 The extent of squatt<strong>in</strong>g 2<br />
2 Legal remedies for deal<strong>in</strong>g with squatters 2<br />
2.1 Civil law procedures 3<br />
Part 55 of the Civil Procedure Rules 3<br />
Interim Possession Orders 4<br />
2.2 Crim<strong>in</strong>al law procedures 5<br />
Exist<strong>in</strong>g remedies 5<br />
A new crim<strong>in</strong>al offence of squatt<strong>in</strong>g 6<br />
3 Section 144 (crim<strong>in</strong>alisation): background and debate 6<br />
4 Claim<strong>in</strong>g good title (adverse possession) 13<br />
1 The extent of squatt<strong>in</strong>g<br />
Def<strong>in</strong>itive <strong>in</strong>formation on the number of squatters <strong>in</strong> England and Wales is not available. The<br />
M<strong>in</strong>istry of Justice (MOJ) consultation paper, Options for deal<strong>in</strong>g with squatt<strong>in</strong>g (July 2011)<br />
confirmed that “there is no data held by central Government about the number of people who<br />
squat or their reasons for do<strong>in</strong>g so.” The MOJ estimated that around 20,000 people are<br />
squatt<strong>in</strong>g at any one time. Information is collected on the number of possession orders<br />
granted aga<strong>in</strong>st trespassers:<br />
What the Government does know is that the civil courts granted 216 <strong>in</strong>terim<br />
possession orders <strong>in</strong> 2010 under Part 55(3) of the Civil Procedure Rules. An <strong>in</strong>terim<br />
possession order is an accelerated process, specifically designed for evict<strong>in</strong>g<br />
trespassers from <strong>premises</strong>. A further 531 ord<strong>in</strong>ary possession orders were granted<br />
aga<strong>in</strong>st trespassers under Part 55(1) of the Rules, although it is unclear from the court<br />
proceed<strong>in</strong>gs database what percentage of these related to trespassers <strong>in</strong> <strong>premises</strong> as<br />
opposed to land. These figures provide an <strong>in</strong>dicator of how many properties may be<br />
affected by squatt<strong>in</strong>g each year, but we recognise they may represent only a<br />
proportion of the true problem. 1<br />
2 Legal remedies for deal<strong>in</strong>g with squatters<br />
Both civil and crim<strong>in</strong>al law procedures can be used aga<strong>in</strong>st squatters. Prior to section 144 of the<br />
Legal Aid, Sentenc<strong>in</strong>g and Punishment of Offenders Act 2012 com<strong>in</strong>g <strong>in</strong>to force squatters<br />
were def<strong>in</strong>ed <strong>in</strong> hous<strong>in</strong>g law terms as “trespassers” as they have no rights of occupation.<br />
Trespass is a civil offence thus <strong>in</strong> England and Wales, 2 prior to 1 September 2012, entry <strong>in</strong>to<br />
private property without authority, and without any accompany<strong>in</strong>g crim<strong>in</strong>al conduct or <strong>in</strong>tent, was<br />
not a crim<strong>in</strong>al offence.<br />
1 M<strong>in</strong>istry of Justice, Options for deal<strong>in</strong>g with squatt<strong>in</strong>g, July 2011<br />
2 In contrast, by virtue of section 3 of the Trespass (Scotland) Act 1865 (which is still <strong>in</strong> force) lodg<strong>in</strong>g <strong>in</strong><br />
<strong>premises</strong> without permission is a crim<strong>in</strong>al offence <strong>in</strong> Scotland.<br />
2
The civil remedies aga<strong>in</strong>st squatters are still relevant. They may be used aga<strong>in</strong>st squatters<br />
<strong>in</strong> non-<strong>residential</strong> <strong>premises</strong> and where the owner prefers not to go down the crim<strong>in</strong>al route.<br />
The Department of Communities and Local Government has produced jo<strong>in</strong>t guidance with the<br />
M<strong>in</strong>istry of Justice, Advice on Deal<strong>in</strong>g with Squatters <strong>in</strong> Your Home (updated September<br />
2012).<br />
2.1 Civil law procedures<br />
Part 55 of the Civil Procedure Rules<br />
In possession procedures aga<strong>in</strong>st trespassers landowners need prove only their title and an<br />
<strong>in</strong>tention to rega<strong>in</strong> possession. 3<br />
Proceed<strong>in</strong>gs may be issued as ord<strong>in</strong>ary possession summonses claim<strong>in</strong>g possession on the<br />
ground that the defendants are trespassers. However, it is far more common for landlords to<br />
use special speedy proceed<strong>in</strong>gs that enable landowners to rega<strong>in</strong> possession <strong>in</strong> cases<br />
where there is no dispute about occupancy rights. 4 These proceed<strong>in</strong>gs used to be <strong>in</strong>voked<br />
under either County Court Order 24 (CCR Ord 24) or Order 113 proceed<strong>in</strong>gs <strong>in</strong> the High<br />
Court (RSC Ord 113) – s<strong>in</strong>ce 15 October 2001 these Orders have been replaced by Part 55<br />
of the Civil Procedure Rules which cover all possession proceed<strong>in</strong>gs, <strong>in</strong>clud<strong>in</strong>g those aga<strong>in</strong>st<br />
tenants, mortgagors, and squatters. 5<br />
The procedures specify that landlords are not required to identify the occupiers aga<strong>in</strong>st<br />
whom they are seek<strong>in</strong>g possession. A summons may be issued aga<strong>in</strong>st a named person or<br />
aga<strong>in</strong>st persons unknown stat<strong>in</strong>g the landlord's <strong>in</strong>terest <strong>in</strong> the property, that the property has<br />
been occupied without his/her consent and, if the summons is aga<strong>in</strong>st persons unknown, that<br />
the landlord does not know the names of some or all of the people on the property. The<br />
summons can be served by personal service or by fix<strong>in</strong>g it to the door of the <strong>premises</strong>.<br />
Once the summons is served, five clear days must elapse before the court hear<strong>in</strong>g to allow<br />
service on the defendant(s). If the court f<strong>in</strong>ds that the occupiers are trespassers it is obliged<br />
to make an order for possession – the order will specify a date on which the trespasser must<br />
leave. This is usually 14 days after the hear<strong>in</strong>g but may take effect ‘forthwith.’ 6 Once an order<br />
for possession has been made landlords will still normally have to effect eviction by us<strong>in</strong>g<br />
court bailiffs, which may cause some delay.<br />
If occupiers wish to claim some right of occupation that amounts to a defence, for example a<br />
cont<strong>in</strong>u<strong>in</strong>g tenancy, the burden of prov<strong>in</strong>g its existence lies on them. If a triable issue is<br />
raised over occupancy rights judges have wide discretion either to dismiss the application or<br />
allow the affidavits which have already been filed to stand as plead<strong>in</strong>gs, or try the case by<br />
hear<strong>in</strong>g oral evidence. Such issues arise <strong>in</strong> only a small m<strong>in</strong>ority of cases under these<br />
orders.<br />
These procedures cannot be used aga<strong>in</strong>st a tenant or former tenant or aga<strong>in</strong>st sub-occupiers<br />
where the head tenancy has not been term<strong>in</strong>ated. 7<br />
3 Portland Managements Ltd v Harte [1976] 1 All ER 225.<br />
4 These rules were <strong>in</strong>troduced <strong>in</strong> 1970 to assist landowners aga<strong>in</strong>st the resurgence of the squatt<strong>in</strong>g movement.<br />
5 See Part 55 rules on the M<strong>in</strong>istry of Justice website.<br />
6 McPhail v Persons Unknown [1973] 3 All ER 393.<br />
7 Wirral BC v Smith [1982] 43 P & CR 312<br />
3
Where ord<strong>in</strong>ary possession procedures are used aga<strong>in</strong>st squatters it is open to the<br />
landowner to seek an order for damages for trespass. Under the speedy procedures the<br />
court can make an order for costs aga<strong>in</strong>st an occupier but there is no provision for award<strong>in</strong>g<br />
any monetary compensation by way of damages to a landlord.<br />
Interim Possession Orders<br />
The Crim<strong>in</strong>al Justice and Public Order Act 1994 amended CCR 24 to create a new form of<br />
<strong>in</strong>terim possession order (IPO) which can only be granted aga<strong>in</strong>st trespassers. The new<br />
rules came <strong>in</strong>to force on 24 August 1995. 8<br />
Landlords can only use this procedure if:<br />
• they are only claim<strong>in</strong>g possession;<br />
• the applicant has an immediate right to possession and has had this right throughout the<br />
period of unlawful occupation;<br />
• the respondents entered the <strong>premises</strong> as trespassers;<br />
• the application is issued with<strong>in</strong> 28 days of the date when the owner first knew, or ought<br />
reasonably to have known, that the respondents were <strong>in</strong> occupation.<br />
On discovery of an unlawful occupant the owner of the <strong>premises</strong> may, with<strong>in</strong> 28 days, serve<br />
a notice of <strong>in</strong>tention to commence proceed<strong>in</strong>gs on the alleged squatter(s) before apply<strong>in</strong>g to<br />
the county court for an IPO; occupiers must be given at least 48 hours notice. The<br />
occupier(s) may make written representations to the court; their arguments will be taken <strong>in</strong>to<br />
account before an IPO is granted but if they do not file an affidavit to defend the proceed<strong>in</strong>gs<br />
they lose the right to attend the hear<strong>in</strong>g. The hear<strong>in</strong>g date for an IPO must be set not less<br />
than three days after an application for an IPO is made. If an <strong>in</strong>terim possession order is<br />
refused, the case will be referred to the exist<strong>in</strong>g summary possession procedures. If an order<br />
is granted it must be served on the occupiers with<strong>in</strong> 48 hours and at that po<strong>in</strong>t the occupiers<br />
will have 24 hours to leave the <strong>premises</strong>. An occupier with a right of occupation may apply to<br />
the court to have the order set aside, provided he or she has obeyed the order and left the<br />
<strong>premises</strong>.<br />
The 1994 Act 9 made it an offence to make a false or mislead<strong>in</strong>g statement <strong>in</strong> order to obta<strong>in</strong><br />
an IPO <strong>in</strong> civil proceed<strong>in</strong>gs to remove squatters from <strong>premises</strong>. 10 This provision is <strong>in</strong>tended<br />
to protect lawful occupiers from unscrupulous landlords who try to use the <strong>in</strong>terim possession<br />
procedure to evict them. The Act also made it a crim<strong>in</strong>al offence for a person who is the<br />
subject of an <strong>in</strong>terim order to fail to leave the <strong>premises</strong> concerned with 24 hours of the order<br />
be<strong>in</strong>g granted, or to enter the <strong>premises</strong> aga<strong>in</strong> as a trespasser with<strong>in</strong> one year. 11 The<br />
maximum penalty for fail<strong>in</strong>g to leave or re-occupy<strong>in</strong>g with<strong>in</strong> one year is six months’<br />
imprisonment. If squatters refuse to leave the <strong>premises</strong> the landlord may ask the police to<br />
arrest them; there is no need to apply for a warrant or wait for the county court bailiffs to<br />
remove them.<br />
The consultation paper, Options for deal<strong>in</strong>g with squatt<strong>in</strong>g, identified some disadvantages<br />
associated with the IPO process:<br />
8 The County Court (Amendment No 2) Rules 1995 SI 1995/1582<br />
9 Received Royal Assent on 3 November 1994<br />
10 Section 75<br />
11 Section 76<br />
4
There can be disadvantages too, however. Because an IPO is an <strong>in</strong>terim remedy, a<br />
subsequent hear<strong>in</strong>g is required for a f<strong>in</strong>al order, and the court will <strong>in</strong> decid<strong>in</strong>g whether<br />
to make the IPO have regard to whether the claimant has given or is prepared to give<br />
undertak<strong>in</strong>gs not to re-let the <strong>premises</strong> or to damage the <strong>premises</strong> or the defendant’s<br />
property before the f<strong>in</strong>al order and to re<strong>in</strong>state the defendant and pay damages should<br />
it subsequently be determ<strong>in</strong>ed that the claimant was not entitled to the IPO. Also,<br />
because the IPO is <strong>in</strong>tended for urgent repossession by a displaced occupier, the<br />
application must be made promptly (with<strong>in</strong> 28 days of when the claimant knew or ought<br />
to have known that any of the defendants were <strong>in</strong> occupation); and must <strong>in</strong>volve a<br />
claim for possession alone, and cannot be made along with a claim for another<br />
remedy, such as damages. 12<br />
The 1994 Act did not made squatt<strong>in</strong>g <strong>in</strong> either <strong>residential</strong> or commercial <strong>premises</strong> an automatic<br />
crim<strong>in</strong>al offence.<br />
2.2 Crim<strong>in</strong>al law procedures<br />
Exist<strong>in</strong>g remedies<br />
Strictly speak<strong>in</strong>g, there used to be no need for landowners to br<strong>in</strong>g court proceed<strong>in</strong>gs to evict<br />
trespassers. They were entitled to use ‘self-help’ and to evict trespassers without a court<br />
order. 13 However, this course of action was not recommended because of the ‘possible<br />
disturbance’ that might be caused. 14<br />
Entry <strong>in</strong>to private property without authority, but without any accompany<strong>in</strong>g crim<strong>in</strong>al conduct<br />
or <strong>in</strong>tent, was, prior to 1 September 2012, not a crim<strong>in</strong>al offence. The Crim<strong>in</strong>al Law Act<br />
1977 15 had provided that if violence is used or threatened for the purpose of secur<strong>in</strong>g entry<br />
to <strong>premises</strong> when someone is present on those <strong>premises</strong>, this can amount to a crim<strong>in</strong>al<br />
offence. However, the Crim<strong>in</strong>al Justice and Public Order Act 1994 made it clear that this<br />
offence would not apply to a person who is a “displaced <strong>residential</strong> occupier” or a “protected<br />
<strong>in</strong>tend<strong>in</strong>g occupier” (or someone act<strong>in</strong>g on their behalf).<br />
A displaced <strong>residential</strong> occupier is any person, other than another trespasser, who was us<strong>in</strong>g<br />
the <strong>premises</strong> or part of them as a residence immediately before the trespasser entered. 16<br />
This exception was designed to permit the owner occupier or tenant who is absent from his<br />
home for a short period, and who returns to f<strong>in</strong>d his <strong>premises</strong> squatted, to take direct action<br />
to evict trespassers without any need to <strong>in</strong>itiate court proceed<strong>in</strong>gs and without fear of<br />
committ<strong>in</strong>g an offence. A displaced <strong>residential</strong> occupier must still take care not to commit<br />
other offences such as assault or actual bodily harm.<br />
The 1977 Act <strong>in</strong>troduced a major new crim<strong>in</strong>al offence aga<strong>in</strong>st would-be squatters. It is an<br />
offence under section 7 for any trespasser who enters as a trespasser to fail to leave<br />
<strong>premises</strong> if asked to do so by a displaced <strong>residential</strong> occupier or a person who is a protected<br />
<strong>in</strong>tend<strong>in</strong>g occupier (PIO). PIOs are those who have been designated to occupy a property by<br />
a local authority or hous<strong>in</strong>g association, or those who f<strong>in</strong>d that a property that they have just<br />
bought has been occupied while the sale was be<strong>in</strong>g transacted. 17 There is no offence of<br />
fail<strong>in</strong>g to leave until a request has been made to do so. PIOs must produce statements<br />
12 M<strong>in</strong>istry of Justice, Options for deal<strong>in</strong>g with squatt<strong>in</strong>g, July 2011, para 17<br />
13 R v Blankley [1979] Crim LR 166; McPhail v Persons Unknown [1973] 3 All ER 393.<br />
14 McPhail v Persons Unknown per Lord Denn<strong>in</strong>g MR at p 396.<br />
15 Section 6<br />
16 Section 12 of the Crim<strong>in</strong>al Law Act 1977<br />
17 Section 7<br />
5
prov<strong>in</strong>g their status; if this is done satisfactorily the police can be requested to remove the<br />
trespassers.<br />
The Crim<strong>in</strong>al Law Act 1977 <strong>in</strong>troduced other crim<strong>in</strong>al offences <strong>in</strong> connection with squatt<strong>in</strong>g. It<br />
is a crim<strong>in</strong>al offence for a person on the <strong>premises</strong> as a trespasser, hav<strong>in</strong>g entered as such,<br />
to have with him any weapon of offence, i.e. anyth<strong>in</strong>g which has been made or adapted for<br />
caus<strong>in</strong>g <strong>in</strong>jury to another. 18 Section 9 made it an offence for a trespasser to enter diplomatic<br />
or consular build<strong>in</strong>gs, unless he can show that he does not believe them to be diplomatic or<br />
consular <strong>premises</strong>. It is also an offence to resist or <strong>in</strong>tentionally obstruct any person who is<br />
an officer of the court execut<strong>in</strong>g a possession order issued by the county or High Court. 19<br />
Section 10 is worded so that it applies to resistance or <strong>in</strong>tentional obstruction of an officer<br />
execut<strong>in</strong>g any order which could have been brought under Part 55 of the Civil Procedure<br />
Rules, even if the landowner used ord<strong>in</strong>ary possession proceed<strong>in</strong>gs.<br />
A new crim<strong>in</strong>al offence of squatt<strong>in</strong>g<br />
Hav<strong>in</strong>g signalled an <strong>in</strong>tention <strong>in</strong> March 2011 to take steps to make squatt<strong>in</strong>g a crim<strong>in</strong>al<br />
offence 20 the M<strong>in</strong>istry of Justice published a consultation paper, Options for deal<strong>in</strong>g with<br />
squatt<strong>in</strong>g, <strong>in</strong> July 2011.<br />
Subsequently, dur<strong>in</strong>g Commons Report Stage of the Legal Aid, Sentenc<strong>in</strong>g and Punishment<br />
of Offenders Bill 2010-11 the Government moved that New Clause 26 (now section 144 of<br />
the Act) be added to make squatt<strong>in</strong>g <strong>in</strong> <strong>residential</strong> build<strong>in</strong>gs a crim<strong>in</strong>al offence. 21 Section 144<br />
was brought <strong>in</strong>to force on 1 September 2012 by the Legal Aid, Sentenc<strong>in</strong>g and Punishment<br />
of Offenders Act 2012 (Commencement No.1) Order 2012 (SI 2012/1956).<br />
The offence is committed if a person enters the build<strong>in</strong>g as trespasser and lives there, or<br />
<strong>in</strong>tends to live there, for a period of time. To commit the offence the person must know or<br />
ought to have known that they are a trespasser. For the purposes of the offence a<br />
<strong>residential</strong> build<strong>in</strong>g <strong>in</strong>cludes “any structure or part of a structure that has been designed or<br />
adapted for use as a place to live prior to its occupation by squatters.” This <strong>in</strong>cludes<br />
permanent structures such as brick-built houses or flats and temporary or moveable<br />
structures, such as <strong>residential</strong> prefabs, park homes or caravans.<br />
The offence is only committed by someone squatt<strong>in</strong>g <strong>in</strong> <strong>residential</strong> <strong>premises</strong> on or after<br />
1 September 2012. The offence will not apply to legitimate tenants who fall beh<strong>in</strong>d with rent<br />
payments or refuse to leave at the end of their tenancy.<br />
The penalty for the offence is imprisonment for a term of not more than 51 weeks or a f<strong>in</strong>e<br />
not exceed<strong>in</strong>g level 5 on the standard scale (or both).<br />
Media reports <strong>in</strong>dicate that Westm<strong>in</strong>ster Council was the first to use the new provision<br />
aga<strong>in</strong>st a long stand<strong>in</strong>g squatter <strong>in</strong> a block of flats. 22<br />
3 Section 144 (crim<strong>in</strong>alisation): background and debate<br />
The Written Statement reproduced below expla<strong>in</strong>s the th<strong>in</strong>k<strong>in</strong>g beh<strong>in</strong>d the Options for deal<strong>in</strong>g<br />
with squatt<strong>in</strong>g consultation exercise:<br />
18<br />
Section 8<br />
19<br />
Section 10<br />
20<br />
CLG, Grant Shapps signals an end to squatters’ rights, March 2011<br />
21<br />
HC Deb 1 November 2011 c864<br />
22<br />
BBC, Squatter evicted from Lisson Green estate us<strong>in</strong>g new law, 12 September 2012<br />
6
Crisp<strong>in</strong> Blunt (Parliamentary Under Secretary of State (Prisons and Probation),<br />
Justice; Reigate, Conservative)<br />
The Government have become <strong>in</strong>creas<strong>in</strong>gly concerned about the distress and misery<br />
that squatters can cause. Law-abid<strong>in</strong>g property owners or occupiers who work hard for<br />
a liv<strong>in</strong>g can spend thousands of pounds evict<strong>in</strong>g squatters from their properties,<br />
repair<strong>in</strong>g damage and clear<strong>in</strong>g up the debris they have left beh<strong>in</strong>d.<br />
I have met with hon. Members and corresponded with members of the public who have<br />
expressed concern about the appall<strong>in</strong>g impact squatt<strong>in</strong>g has had on their properties or<br />
local neighbourhoods.<br />
The Government do not accept the claim that is sometimes made that squatt<strong>in</strong>g is a<br />
reasonable recourse of the homeless result<strong>in</strong>g from social deprivation. There are<br />
options open to those who are genu<strong>in</strong>ely destitute and who need shelter which do not<br />
<strong>in</strong>volve occupy<strong>in</strong>g somebody else’s property without authority. No matter how<br />
compell<strong>in</strong>g or difficult the squatter’s own circumstances are claimed to be, it is wrong<br />
that legitimate occupants should be deprived of the use of their property.<br />
There should be no doubt about the seriousness with which the Government treat this<br />
problem or our determ<strong>in</strong>ation to tackle it. The Hous<strong>in</strong>g M<strong>in</strong>ister and I have already<br />
published new guidance on the direct.gov website for property owners on evict<strong>in</strong>g<br />
squatters under exist<strong>in</strong>g legislation.<br />
The consultation paper we are publish<strong>in</strong>g today <strong>in</strong>vites views on whether more should<br />
be done to strengthen the crim<strong>in</strong>al law or its enforcement. We could do this, for<br />
example, by <strong>in</strong>troduc<strong>in</strong>g a new offence of squatt<strong>in</strong>g; by strengthen<strong>in</strong>g exist<strong>in</strong>g offences<br />
that currently apply to squatters; or by work<strong>in</strong>g with the enforcement authorities to<br />
identify and overcome barriers to enforcement of exist<strong>in</strong>g offences that may be<br />
committed by squatters.<br />
The Government acknowledge that some of the options they are propos<strong>in</strong>g may have<br />
an impact on the enforcement authorities, local authorities, homelessness charities and<br />
other organisations. Any option we decide to pursue as a result of this consultation will<br />
need to be workable and affordable, tak<strong>in</strong>g account of the current economic climate<br />
and reduction <strong>in</strong> Government expenditure.<br />
Of course, we must also tackle problems affect<strong>in</strong>g the wider hous<strong>in</strong>g market and br<strong>in</strong>g<br />
more empty homes back <strong>in</strong>to productive use. The Government <strong>in</strong>tend to publish an<br />
empty homes strategy over the summer and a wider hous<strong>in</strong>g strategy <strong>in</strong> the autumn,<br />
sett<strong>in</strong>g out the overall approach to hous<strong>in</strong>g policy, <strong>in</strong>clud<strong>in</strong>g how we are support<strong>in</strong>g an<br />
<strong>in</strong>crease <strong>in</strong> the supply and quality of new private and social hous<strong>in</strong>g, help<strong>in</strong>g those<br />
seek<strong>in</strong>g a home of their own, whether to rent or buy. The Government have already<br />
made available £4.5 billion to help deliver new affordable hous<strong>in</strong>g through the<br />
affordable homes programme and as part of that, £100 million to br<strong>in</strong>g empty homes<br />
back <strong>in</strong>to use. 23<br />
The options over which the Government consulted <strong>in</strong>cluded:<br />
Option 1: The creation of a new offence of squatt<strong>in</strong>g <strong>in</strong> build<strong>in</strong>gs.<br />
Option 2: Expand<strong>in</strong>g exist<strong>in</strong>g offence <strong>in</strong> section 7 of the Crim<strong>in</strong>al Law Act 1977.<br />
Option 3: Repeal<strong>in</strong>g or amend<strong>in</strong>g section 6 of the Crim<strong>in</strong>al Law Act 1977.<br />
23 HC Deb 13 July 2011 c30WS<br />
7
Option 4: Leav<strong>in</strong>g the crim<strong>in</strong>al law unchanged but work<strong>in</strong>g with enforcement authorities to<br />
improve enforcement of exist<strong>in</strong>g remedies.<br />
Option 5: Do noth<strong>in</strong>g – cont<strong>in</strong>ue with exist<strong>in</strong>g sanctions and enforcement activity.<br />
The impact assessment on the new squatt<strong>in</strong>g provision set out the rationale for <strong>in</strong>tervention:<br />
The consultation process revealed that squatt<strong>in</strong>g was prevalent <strong>in</strong> large cities like<br />
London, Birm<strong>in</strong>gham and Bristol <strong>in</strong> <strong>residential</strong> and non-<strong>residential</strong> build<strong>in</strong>gs.<br />
Organisations and <strong>in</strong>dividuals who responded to the consultation were divided on<br />
whether squatt<strong>in</strong>g was a ‘problem’. Property owners who had encountered squatters <strong>in</strong><br />
their properties generally felt that tougher crim<strong>in</strong>al sanctions were required to address<br />
this problem. Squatters and those respond<strong>in</strong>g to the consultation on their behalf<br />
argued that squatt<strong>in</strong>g was merely a manifestation of a hous<strong>in</strong>g crisis. They said that if<br />
the government did more to tackle the root causes of homelessness and to address<br />
the shortage of affordable homes, levels of squatt<strong>in</strong>g would decl<strong>in</strong>e.<br />
Hav<strong>in</strong>g considered the consultation responses, the government is persuaded that more<br />
needs to be done to protect owners and lawful occupiers of <strong>residential</strong> property from<br />
squatters, whilst cont<strong>in</strong>u<strong>in</strong>g to address the root causes of homelessness, provision of<br />
affordable hous<strong>in</strong>g and social deprivation through exist<strong>in</strong>g policy <strong>in</strong>itiatives. 24<br />
Additional costs were identified:<br />
The creation of a new crim<strong>in</strong>al offence of squatt<strong>in</strong>g, limited to <strong>residential</strong> properties,<br />
would be less costly than option 1, but is still likely to result <strong>in</strong> an <strong>in</strong>crease <strong>in</strong> police,<br />
CPS, legal aid, prison, and probation costs, due to additional squatt<strong>in</strong>g cases go<strong>in</strong>g<br />
through the crim<strong>in</strong>al justice system. It is difficult to estimate the precise impact as there<br />
is no consensus on the true extent of squatt<strong>in</strong>g, or the proportion of squatt<strong>in</strong>g that is <strong>in</strong><br />
<strong>residential</strong> build<strong>in</strong>gs. Our best estimate of costs to the CJS is around £5m per year.<br />
However, given the many uncerta<strong>in</strong>ties, we have estimated a range of potential costs<br />
of between £1m and £9m per year.<br />
Local authorities and homelessness (and other related) charities may face <strong>in</strong>creased<br />
pressure on their services if more squatters are arrested/convicted and/or deterred<br />
from squatt<strong>in</strong>g. Local authorities may be required to provide alternative<br />
accommodation for these <strong>in</strong>dividuals and could also face costs related to <strong>in</strong>creases <strong>in</strong><br />
rough sleep<strong>in</strong>g <strong>in</strong> their areas. An <strong>in</strong>crease <strong>in</strong> demand for charities’ services<br />
(food/shelter etc) may negatively impact current charity service users. There may also<br />
be a cost to society if this option is perceived to be unfair and/or leads to <strong>in</strong>creases <strong>in</strong><br />
rough sleep<strong>in</strong>g. It has not been possible to quantify these costs. 25<br />
The benefits of the measure were identified as:<br />
As a result of crim<strong>in</strong>alisation, it is likely that cases that are currently heard <strong>in</strong> the civil<br />
courts (applications for Interim Possession Orders and Possession Orders) will <strong>in</strong>stead<br />
go through the crim<strong>in</strong>al courts. This will result <strong>in</strong> sav<strong>in</strong>gs on the civil side. These<br />
sav<strong>in</strong>gs have not been quantified, but it is likely that they will partially offset the<br />
estimated <strong>in</strong>crease <strong>in</strong> crim<strong>in</strong>al costs.<br />
The creation of a new offence, limited to <strong>residential</strong> properties, should allow <strong>residential</strong><br />
property owners to rega<strong>in</strong> possession of their property from squatters more quickly and<br />
easily, which should reduce costs and provide greater security for <strong>residential</strong> property<br />
24 MOJ, Impact assessment on the crim<strong>in</strong>alisation of squatt<strong>in</strong>g, October 2011<br />
25 ibid<br />
8
owners. This may reduce any serious direct f<strong>in</strong>ancial and emotional impact suffered by<br />
<strong>residential</strong> property owners/occupiers, with potentially large benefits. Society may also<br />
prefer squatt<strong>in</strong>g to be more robustly tackled through crim<strong>in</strong>al sanctions. It has not been<br />
possible to quantify these benefits, but they may be significant. 26<br />
An Equality Impact Assessment, Options for deal<strong>in</strong>g with squatt<strong>in</strong>g, was also published <strong>in</strong><br />
which some potential for <strong>in</strong>direct discrim<strong>in</strong>ation aga<strong>in</strong>st people with certa<strong>in</strong> protected<br />
characteristics was identified:<br />
Although the proposed new offence will apply equally to those who share a protected<br />
characteristic and those who do not, we have <strong>in</strong> this analysis identified how those who<br />
share a certa<strong>in</strong> characteristic may be more likely to squat, and therefore more likely to<br />
be crim<strong>in</strong>alised, with the attendant consequences of crim<strong>in</strong>alisation. Although clear<br />
conclusions are difficult to draw from the available data, we have identified <strong>in</strong> particular<br />
potential differential effects <strong>in</strong> respect of age, disability, race and sex. However, even if<br />
it were established that these effects constituted a particular disadvantage, we believe<br />
that the new offence represents a proportionate response to the problem of squatt<strong>in</strong>g<br />
and the aim of protect<strong>in</strong>g the legitimate rights of <strong>residential</strong> property owners. 27<br />
A couple of amendments to New Clause 26 (now section 144 of the Act) were tabled and<br />
debated at Report Stage – these amendments would have:<br />
• provided that no offence of squatt<strong>in</strong>g would be committed where a property had been<br />
empty for at least six months and no attempt to refurbish, sell or let the dwell<strong>in</strong>g had<br />
been made at the time it was squatted; and<br />
• provided that no offence would be committed if the person <strong>in</strong>itially entered the<br />
build<strong>in</strong>g as a trespasser before the commencement of New Clause 26. 28<br />
The M<strong>in</strong>ister, Crisp<strong>in</strong> Blunt, expla<strong>in</strong>ed the Government’s reasons for not extend<strong>in</strong>g the<br />
offence to commercial <strong>premises</strong>:<br />
As my hon. Friend the Member for Chatham and Aylesford (Tracey Crouch) said, there<br />
are others who will say that any new offence should extend to squatt<strong>in</strong>g <strong>in</strong> commercial<br />
<strong>premises</strong>. As I said to her, I rema<strong>in</strong> concerned about squatt<strong>in</strong>g <strong>in</strong> those properties and<br />
will work with other Departments and the enforcement authorities to see whether action<br />
aga<strong>in</strong>st exist<strong>in</strong>g offences such as crim<strong>in</strong>al damage and burglary could be enforced<br />
more effectively <strong>in</strong> those cases.<br />
The Metropolitan police acknowledged, <strong>in</strong> response to our consultation, that a lack of<br />
tra<strong>in</strong><strong>in</strong>g and practical knowledge regard<strong>in</strong>g the law on squatt<strong>in</strong>g may be a barrier to<br />
effective enforcement. My officials will work with the Home Office and the wider police<br />
service to address these issues and fill any gaps <strong>in</strong> current police practice. We will<br />
keep the situation under review <strong>in</strong> relation to non-<strong>residential</strong> property and are not rul<strong>in</strong>g<br />
out further action <strong>in</strong> the future if it is needed. 29<br />
The M<strong>in</strong>ister also set out the Government’s position <strong>in</strong> relation to the proposed amendments:<br />
On amendment (a), many squatters claim that they do not cause any harm to anybody<br />
because they look for empty properties to occupy. In the responses to our recent<br />
consultation exercise, that po<strong>in</strong>t was made by squatters and squatters groups, but<br />
26 ibid<br />
27 EIA, Options for deal<strong>in</strong>g with squatt<strong>in</strong>g, 2011<br />
28 HC Deb 1 November 2011 c864<br />
29 ibid<br />
9
espondents who made that argument were miss<strong>in</strong>g one rather important po<strong>in</strong>t: the<br />
houses are not theirs to occupy. There are many reasons why a house might be left<br />
empty for more than six months without any steps be<strong>in</strong>g taken to refurbish, let or sell<br />
the build<strong>in</strong>g. For example, somebody might decide to do charitable work <strong>in</strong> another<br />
country for a year, or they might visit their second home dur<strong>in</strong>g the summer months<br />
only. It is the owner’s prerogative to leave the house empty <strong>in</strong> those circumstances. To<br />
say that property owners or occupiers should not be protected by the crim<strong>in</strong>al law <strong>in</strong><br />
these circumstances would be unjust and it would considerably weaken our proposed<br />
new offence.<br />
Consultation responses highlighted a concern about the number of properties that are<br />
left empty on a long-term basis. They argued that such properties can crumble <strong>in</strong>to<br />
disrepair and might be seen as a blight on the local neighbourhood. But permitt<strong>in</strong>g<br />
squatters to occupy derelict, crumbl<strong>in</strong>g, unsafe houses cannot be the answer. We are<br />
do<strong>in</strong>g a number of th<strong>in</strong>gs to encourage absent owners to make better use of their<br />
properties.<br />
We want to <strong>in</strong>crease the number of empty homes that are brought back <strong>in</strong>to use as a<br />
susta<strong>in</strong>able way of <strong>in</strong>creas<strong>in</strong>g the overall supply of hous<strong>in</strong>g, and to reduce the<br />
perception of neglect that can blight neighbourhoods. Reduc<strong>in</strong>g the number of empty<br />
homes will also help to reduce the <strong>in</strong>cidence of squatt<strong>in</strong>g. That is why we have<br />
announced £100 million of capital fund<strong>in</strong>g with<strong>in</strong> the affordable homes programme to<br />
tackle problematic empty homes—that is properties that are likely to rema<strong>in</strong> empty<br />
without extra direct f<strong>in</strong>ancial assistance from the Government. This programme will<br />
deliver at least 3,300 affordable homes by March 2015, as well as engag<strong>in</strong>g local<br />
communities <strong>in</strong> deal<strong>in</strong>g with empty homes <strong>in</strong> their area.<br />
Amendment (c) is designed to exempt squatters from the offence if they occupy<br />
<strong>residential</strong> build<strong>in</strong>gs before the date of commencement. Let me be clear that we have<br />
no plans to punish people retrospectively. If they have squatted <strong>in</strong> the past but are no<br />
longer squatt<strong>in</strong>g when the offence comes <strong>in</strong>to force, the offence will not apply.<br />
However, we would be creat<strong>in</strong>g a significant loophole if we exempted squatters who<br />
<strong>in</strong>itially entered the build<strong>in</strong>g as a trespasser <strong>in</strong> the run-up to commencement even<br />
though after commencement of the offence they rema<strong>in</strong> <strong>in</strong> the build<strong>in</strong>g as a trespasser,<br />
they know or ought to know that they are a trespasser and that they are liv<strong>in</strong>g there or<br />
<strong>in</strong>tend to live there. Such an occupation would be no less pa<strong>in</strong>ful for the property<br />
owners concerned. 30<br />
Andy Slaughter, for Labour, raised the possibility of <strong>in</strong>creas<strong>in</strong>g homelessness 31 while John<br />
McDonnell questioned the extent of squatt<strong>in</strong>g and the evidence on which the need for<br />
legislation <strong>in</strong> this area was based. 32 He went on to question the impact of the new offence on<br />
police resources:<br />
If the current problem is with police resources, the question—which has been raised by<br />
the High Court enforcement officers, the Crim<strong>in</strong>al Bar Association and the Law<br />
Society—is whether the police would have the resources to enforce the law if a new<br />
offence is created, when they appear to be unable to enforce it aga<strong>in</strong>st the exist<strong>in</strong>g<br />
offences. The Met has acknowledged that and is seek<strong>in</strong>g to address it, as my hon.<br />
Friend the Member for Hammersmith and the M<strong>in</strong>ister have said. The Metropolitan<br />
Police Service said <strong>in</strong> its statement that there was a lack of tra<strong>in</strong><strong>in</strong>g and practical<br />
knowledge on the law on squatt<strong>in</strong>g, particularly section 7 of the 1977 Act, which may<br />
30 HC Deb 1 November 2011 cc867-8<br />
31 HC Deb 1 November 2011 c871<br />
32 HC Deb 1 November 2011 cc874-5<br />
10
e a barrier to effective enforcement, and that it was conduct<strong>in</strong>g further tra<strong>in</strong><strong>in</strong>g to<br />
address the issue.<br />
By crim<strong>in</strong>alis<strong>in</strong>g squatt<strong>in</strong>g, the new clause certa<strong>in</strong>ly does not appear to be needed, but<br />
it will have consequences if <strong>in</strong>troduced, some of them un<strong>in</strong>tended. The new law will<br />
have consequences for those who will be brought <strong>in</strong>to the crim<strong>in</strong>al justice system for<br />
the first time, and it is worth repeat<strong>in</strong>g who those people are likely to be. The hous<strong>in</strong>g<br />
charity Crisis commissioned research <strong>in</strong>to squatt<strong>in</strong>g from the centre for regional,<br />
economic and social research at Sheffield Hallam university, which was published only<br />
a month ago, <strong>in</strong> September. It found that, by and large, squatters were homeless<br />
people. 33<br />
The amendment to exempt properties that have been empty for at least six months was<br />
pressed to a vote – it was defeated by 23 votes to 300. 34 The House agreed that<br />
New Clause 26 (un-amended) should be added to the Bill by 283 votes to 13.<br />
Baroness Miller sought to amend the squatt<strong>in</strong>g clause (clause 130 of HL-Bill 109) dur<strong>in</strong>g its<br />
committee stages <strong>in</strong> the House of Lords. Her amendment would have provided that no<br />
offence of squatt<strong>in</strong>g would be committed where a property had been empty for at least six<br />
months and no attempt to refurbish, sell, or let the dwell<strong>in</strong>g had been made at the time it was<br />
squatted. 35 The Baroness questioned the cost of crim<strong>in</strong>alis<strong>in</strong>g squatt<strong>in</strong>g and raised issues<br />
around its impact on vulnerable homeless people. She argued that the current law provided<br />
adequate protection when properly applied and that the focus of the Government should be<br />
on tackl<strong>in</strong>g the number of empty properties.<br />
Respond<strong>in</strong>g for the Government, Lord McNally said:<br />
The whole po<strong>in</strong>t of creat<strong>in</strong>g this offence is that the Government want to send a clear<br />
message to exist<strong>in</strong>g and would-be squatters that occupy<strong>in</strong>g someone else's house<br />
without permission is unacceptable, whatever the circumstances of the rightful owner<br />
or the state of the build<strong>in</strong>g. It does not suddenly become acceptable to squat if the<br />
owner of a property happens to go away for six and a half months. Amendment 188 is<br />
designed to protect people who squat <strong>in</strong> <strong>residential</strong> build<strong>in</strong>gs that have been empty for<br />
more than six months, where no significant steps are be<strong>in</strong>g taken to refurbish, sell or<br />
let the property.<br />
The Government's view is that the proposed new offence is entirely proportionate.<br />
There are many reasons why a <strong>residential</strong> build<strong>in</strong>g might be left empty for longer than<br />
six months without any steps be<strong>in</strong>g taken to sell, let or refurbish the property. As the<br />
noble Baroness has acknowledged, the Government are br<strong>in</strong>g<strong>in</strong>g more empty homes<br />
back <strong>in</strong>to use and address<strong>in</strong>g the shortage of affordable hous<strong>in</strong>g as a top priority.<br />
Allow<strong>in</strong>g squatters to occupy other people's properties cannot be part of that answer. I<br />
urge the noble Baroness to withdraw her amendment. 36<br />
Baroness Miller withdrew her amendment but said she would return to the matter on<br />
Report. 37 At Report stage she moved an amendment to provide that the offence would not be<br />
committed where the property concerned had been empty for at least 12 months and was not<br />
subject to a current plann<strong>in</strong>g application (amendment 36). 38 She moved a further amendment<br />
33 HC Deb 1 November 2011 c877<br />
34 HC Deb 1 November 2011 c889<br />
35 HL Deb 15 February 2012 cc905-8<br />
36 HL Deb 15 February 2012 c911<br />
37 HL Deb 15 February 2012 c912<br />
38 HL Deb 27 March 2012 c1353-4<br />
11
(41) to ensure that the offence would not be brought <strong>in</strong>to force until consultation had been<br />
carried out with “representatives of local authorities and other such persons as considered<br />
appropriate.”<br />
Baroness Northover responded for the Government – she gave a commitment that, before<br />
the new crim<strong>in</strong>al offence was commenced, the Government would work closely with relevant<br />
bodies “to ensure that they are aware of the new offence.” 39 Baroness Miller withdrew<br />
amendment 36 but pressed amendment 41 to a vote – it was defeated by 107 votes to 21. 40<br />
The Legal Aid, Sentenc<strong>in</strong>g and Punishment of Offenders Act 2012 completed its<br />
parliamentary stages and obta<strong>in</strong>ed Royal Assent on 1 May 2012. As previously noted,<br />
section 144 was brought <strong>in</strong>to force on 1 September 2012.<br />
Comment<br />
Homelessness charities raised the potential impact of crim<strong>in</strong>alis<strong>in</strong>g squatt<strong>in</strong>g on vulnerable<br />
<strong>in</strong>dividuals, such as those who have mental health problems or who are reliant on alcohol or<br />
drugs. The Government said it would take responses from those with protected<br />
characteristics under the Equality Act 2010 <strong>in</strong>to account when decid<strong>in</strong>g the best way forward.<br />
Shelter, the hous<strong>in</strong>g charity, did not support further crim<strong>in</strong>alisation of squatt<strong>in</strong>g:<br />
Shelter does not support further crim<strong>in</strong>alisation of squatt<strong>in</strong>g, nor the repeal or<br />
amendments of relevant sections of the Crim<strong>in</strong>al Justice Act, due to possible<br />
underm<strong>in</strong><strong>in</strong>g of legitimate tenant protection and other un<strong>in</strong>tended consequences, and<br />
due to the fact that crim<strong>in</strong>al law already exists to deal with squatt<strong>in</strong>g <strong>in</strong> <strong>residential</strong><br />
<strong>premises</strong>.<br />
We believe that legal changes should be based on robust, quantifiable evidence to<br />
ensure they are proportionate to the scale of the problem and un<strong>in</strong>tended<br />
consequences are m<strong>in</strong>imised. 41<br />
Several respondents to the consultation exercise referred to the proposals as “media driven”<br />
– for example the Law Society’s response said:<br />
We are concerned that the proposals <strong>in</strong> this consultation are based on<br />
misunderstand<strong>in</strong>gs by the media of the scale of the problem and a misunderstand<strong>in</strong>g of<br />
the current law.<br />
The consultation proposes to create a new crim<strong>in</strong>al offence of squatt<strong>in</strong>g. This is<br />
unnecessary. It is our experience that squatt<strong>in</strong>g is not a significant problem and that<br />
where it does occur there is a range of laws both civil and crim<strong>in</strong>al that are adequate to<br />
deal with it.<br />
Paragraphs 3 and 12 of the paper acknowledge a lack of statistical evidence. We<br />
object to changes to the law that are not evidence based. It is entirely disproportionate<br />
to create a new offence without obta<strong>in</strong><strong>in</strong>g evidence to assess the scale of the problem.<br />
We urge the government to conduct statistical research rather than react<strong>in</strong>g to media<br />
heightened public concern created by the media. This is a question of education and<br />
adm<strong>in</strong>istration not legislation.<br />
39 HL Deb 27 March 2012 c1364<br />
40 HL Deb 27 March 2012 c1378-9<br />
41 Shelter’s response, October 2011<br />
12
The consultation has partly been prompted by the media <strong>in</strong>terest <strong>in</strong> the cases such as<br />
that of Dr Oliver Cockerell and his pregnant wife, Mrs Cockerell. The media reported<br />
that the police told the Cockerells that the law did not allow them to remove the<br />
squatters. This is legally <strong>in</strong>correct. Crim<strong>in</strong>al offences already exist for a squatter<br />
occupy<strong>in</strong>g a <strong>residential</strong> home. Under the Crim<strong>in</strong>al Law Act 1977, it is a crim<strong>in</strong>al offence<br />
for a squatter to rema<strong>in</strong> if they have been <strong>in</strong>formed of a displaced occupier or a<br />
protected occupier. The police can arrest a squatter who does not leave, as a<br />
trespasser. <strong>Squatt<strong>in</strong>g</strong> <strong>in</strong> a commercial property is a crim<strong>in</strong>al offence once the <strong>in</strong>terim<br />
possession order is made and served and the squatters have not left with<strong>in</strong> 24 hours.<br />
The current law is comprehensive and effective. 42<br />
Crisis commissioned research by the Centre for Regional and Economic Research at<br />
Sheffield Hallam University <strong>in</strong>to the issue of squatt<strong>in</strong>g. The f<strong>in</strong>d<strong>in</strong>gs were published <strong>in</strong><br />
September 2011. In <strong>Squatt<strong>in</strong>g</strong> – a homelessness issue the researchers concluded:<br />
• squatt<strong>in</strong>g is a common response to homelessness;<br />
• most homeless people who squat try other avenues to resolve their hous<strong>in</strong>g problems<br />
before squatt<strong>in</strong>g;<br />
• squatt<strong>in</strong>g reflects a lack of other options and limited support for s<strong>in</strong>gle homeless<br />
people;<br />
• many squatters have significant welfare needs;<br />
• most squatters who are homeless squat <strong>in</strong> empty, disused dwell<strong>in</strong>gs and not other<br />
people’s homes;<br />
• squatt<strong>in</strong>g is a homelessness and welfare issue not a crim<strong>in</strong>al justice issue; and<br />
• crim<strong>in</strong>alis<strong>in</strong>g squatt<strong>in</strong>g will crim<strong>in</strong>alise a vulnerable homeless population.<br />
The Hous<strong>in</strong>g Law Practitioners Association sent a letter signed by 158 members and nonmembers<br />
to all major newspapers and news organisations on 26 September 2011. The letter<br />
concerned the misrepresentation of squatters’ rights <strong>in</strong> the press and by politicians.<br />
Mike Weatherley MP, who campaigned for the crim<strong>in</strong>alisation of squatt<strong>in</strong>g, responded with<br />
his own letter.<br />
Research commissioned by Squatters’ Action for Secure Homes Can We Afford to<br />
Crim<strong>in</strong>alise <strong>Squatt<strong>in</strong>g</strong>? (March 2012) argued that the cost of crim<strong>in</strong>alisation could reach<br />
£790m <strong>in</strong> the first five years, wip<strong>in</strong>g out the £350m of sav<strong>in</strong>gs the 2012 Act is aimed at<br />
achiev<strong>in</strong>g through legal aid reductions.<br />
Concerns around the potential to <strong>in</strong>crease homelessness were reiterated by homelessness<br />
charities when section 144 was brought <strong>in</strong>to force <strong>in</strong> early September. 43<br />
4 Claim<strong>in</strong>g good title (adverse possession)<br />
The law of adverse possession 44 provides a means by which people can claim title over land<br />
by occupy<strong>in</strong>g it adversely or "squatt<strong>in</strong>g" for a period of time. The broad pr<strong>in</strong>ciple underly<strong>in</strong>g<br />
the law of adverse possession is the rule that no action may be brought for the recovery of<br />
land after the expiration of a statutorily prescribed period of time runn<strong>in</strong>g from the date when<br />
the right of action first accrued. The 1980 Limitation Act provides that 'no action shall be<br />
brought by any person to recover any land after the expiration of 12 years from the date on<br />
42 Law Society’s response, October 2011<br />
43 Inside Hous<strong>in</strong>g, “Charities fear squatt<strong>in</strong>g law will <strong>in</strong>crease homelessness,” 31 August 2012<br />
44 Commonly referred to as ‘squatters’ rights’<br />
13
which the right of action accrued to him'. 45 The Limitation Act reflects the policy that 'those<br />
who go to sleep upon their claims should not be assisted by the courts <strong>in</strong> recover<strong>in</strong>g their<br />
property'. 46<br />
Where adverse possession is used as a means to ga<strong>in</strong> ownership of land, the occupiers<br />
have to show either (i) a 'discont<strong>in</strong>uance by the paper owner followed by possession' or (ii) a<br />
'dispossession' (or 'ouster') of the paper owner. Action for the recovery of land by a paper<br />
owner must be brought before the expiration of the limitation period.<br />
From October 2003 the Land Registration Act 2002 created new rules <strong>in</strong> relation to<br />
registered land that conferred greater protection aga<strong>in</strong>st the acquisition of title by persons<br />
through adverse possession:<br />
The essence of the new scheme is that a squatter will be able to apply to be registered<br />
as proprietor after 10 years’ adverse possession. However, the registered proprietor<br />
will be notified of that application and will, <strong>in</strong> most cases, be able to object to it. If he or<br />
she does, the application will be rejected. However, the proprietor will then have to<br />
take steps to evict the squatter or otherwise regularise his or her position with<strong>in</strong> two<br />
years. If the squatter is still <strong>in</strong> adverse possession after two years, he or she will be<br />
entitled to be registered as proprietor. We consider that this new scheme strikes a<br />
fairer balance between landowner and squatter than does the present law. It also<br />
reflects the fact that the basis of title to registered land is the fact of registration, not (as<br />
is the case with unregistered land) possession. 47<br />
Occupiers who had been <strong>in</strong> adverse possession for 12 years when the Act came <strong>in</strong>to force<br />
on 13 October 2003 were covered by the transitional provisions set out <strong>in</strong> Schedule 12 to the<br />
2003 Act, i.e:<br />
• rights acquired under the Limitation Act 1980 subsist aga<strong>in</strong>st the registered<br />
proprietor; and<br />
• for 3 years, the right to be registered had overrid<strong>in</strong>g status.<br />
Occupiers <strong>in</strong> this position could protect their rights by apply<strong>in</strong>g for registration with<strong>in</strong><br />
3 years of 13 October 2003. 48<br />
Guidance on adverse possession can be found <strong>in</strong> the Land Registry’s Practice Guides:<br />
Practice Guide 4 – adverse possession of registered land; and<br />
Practice Guide 5 – adverse possession of unregistered land and registered land where a<br />
right to register was acquired before 13 October 2003.<br />
45 s.15(1)<br />
46 RB Policies at Lloyd's v Butler [1950] 1 KB 76 at 81<br />
47 Lovells Property Newsletter, September 2001 para 1.13<br />
48 Land Registry Legislation Update 5, Adverse Possession<br />
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