Squatters’ rights could soon be wrongs

18 December, 2011
by: Cripps Pemberton Greenish

Squatting is a topic never far from the attention of the public and media, usually cited as a source of injustice, expense and distress to landowners and occupiers.  Following a recent consultation, the concept of “squatters’ rights” will be scrapped if the Government introduces proposals to criminalise the act.  But until that time, what is the legal position?

Currently the law is unclear. “Squatters’ rights” are often misunderstood and therefore exaggerated by the police, the public and the squatters themselves. The true extent of their “rights” is that a property owner is prevented from using force or violence to recover possession of the property or doing anything that might amount to harassment; for example, cutting off the utilities to try to force the squatters out. Conversely, if the squatters make the mistake of leaving the property empty, even if they have changed the locks and intend to return to it, there is nothing to prevent the owner taking back possession and again changing the locks, simply because the owner has not used violence to do so. In practice, however, it is relatively unlikely that a street-wise squatter would make this mistake.

What is often overlooked is that in some circumstances squatting is already a criminal offence. If a home owner/occupier has actually been displaced from their home by the squatter, it is a criminal offence for the squatter to fail to leave having been required to do so by the owner/occupier. The police can still be reluctant to get involved and may say that it is a civil matter. But if these circumstances apply, and you can prove that you are the owner/occupier, you should be able to put pressure on the police to make an arrest.

The problem is that in the majority of cases, the squatters will occupy either properties that are empty – perhaps because refurbishment works are being carried out to them, they are second/holiday homes or properties waiting to be sold – or commercial/business premises. If that is the case, the owner has to go through what can be a cumbersome court process to evict the squatters.

There are two options for removing squatters through the court. First, if the squatters are occupying a building as opposed to open land, the owner can apply for what is known as an interim possession order (in effect a temporary reprieve pending a full hearing of the case and more considered decision of the court).  In that case, there will be a first hearing at which an order should, all things being well, be made requiring the squatters to leave the property within 24 hours of service of the order.  If the squatters fail to comply, they commit a criminal offence and the police can be involved. The owner then has to go back to court for a further hearing to have the interim possession order made final.

Alternatively, the owner can apply for a summary possession order which should only involve one trip to court, but which is enforced by the county court bailiffs, or at greater expense, high court enforcement officers, and not the police.

Both procedures tend to require the involvement of solicitors and the owner is unlikely to recover possession for several days or weeks depending on the court and the procedure used. That intervening period can be distressing and costly for the owner.  For commercial owners/occupiers, trade can be affected so the consequences are potentially far reaching. Given this, it is perhaps unsurprising there seems to be a significant amount of public support for taking a tougher line on squatting. Recent high profile cases – such as the squatters who took over Guy Ritchie’s two properties – have only served to strengthen this impression.

In the meantime, although there is probably no stopping the most determined of squatters, prevention is better than cure. Owners should take sensible precautions to secure empty properties, preferably giving the appearance that they are occupied – and making regular visits to the property is a prerequisite. If, despite these efforts, a squatter gains access, legal advice should be sought immediately.  As with all legal disputes, timing is of the essence.