To evict or not to evict

There is much debate as to the merit of the new legislation criminalising squatting in residential premises, but there has been no change in the law concerning commercial property.  Owners of such property must still rely on existing methods of eviction, which can be protracted and costly.  It is even possible that the new laws may exacerbate problems for owners of commercial property, as squatters may target these sites in to avoid the risk of facing criminal proceedings.

Residential property owners were already afforded better protection against squatters prior to the new legislation.  So-called ‘squatters’ rights’ are enshrined in Section 6 of the Criminal Law Act 1977, which makes it an offence for a person, without lawful authority, to use or threaten violence for the purpose of securing entry into any premises where someone is present and opposed to the entry.  Section 7 of the same Act, however, makes it an offence for an occupier not to leave residential premises where required to do so by or on behalf of a displaced residential occupier or a protected intending occupier, thus providing an avenue for re-entry.  Section 72 of the Criminal Justice and Public Order Act 1994 provides additional safeguards for displaced residential occupiers and intending occupiers.  These protections, however, are of no use whatsoever to commercial property owners.

The new legislation which further strengthens residential landowners’ position is contained in Section 144 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012.  This enables residential landowners to alert the Police as soon as squatters enter their property and, provided the conditions stipulated within s.144 are satisfied, those squatters will then be liable for arrest and prosecution.  There is no longer a need to resort to civil proceedings prior to instigating criminal proceedings.  The squatters will be liable to either six months’ imprisonment, a fine of up to £5,000, or both.  There are exceptions provided for tenants behind on rent payments and tenants remaining in residential property following expiry of a lease as they are not technically squatters.

Currently, commercial property owners only have immediate recourse to the Police if they suspect that squatters have broken the law by committing an act such as theft or criminal damage.  In reality, this option is rarely used due to the difficulty of proving any such crime.  The tactic most commonly employed is to seek a Possession Order through the civil courts.  Securing an Interim Possession Order (IPO), described in Part 55.20 of the Civil Procedure Rules, is the fastest method of removing squatters.  Such a claim must be submitted within 28 days of the when the property owner first knew, or ought reasonably to have known, of the occupation.  An IPO can usually be obtained within a few days, and the effect is that the squatters will be committing a criminal offence if they do not vacate the premises within 24 hours of service of an IPO.  They are then unable to return for 12 months.

A Possession Order (PO) should be applied for at the same time as an application for an IPO.  Following service of an IPO, squatters are entitled to a further hearing.  Final possession is only achieved once a PO is granted.  If such an Order is turned down, the squatters are entitled to return to the property.  The Sheriffs Office will generally act to remove unauthorised occupants, and the Police will assist where necessary.

It will be interesting to see the effect of the new legislation on squatting.  The Sheriffs Office have noted that evicting squatters is often a troublesome exercise and the Police may not always have the capacity, or the disposition, to help.  Furthermore, should the legislation lead to an increase in squatters in commercial premises, there may be pressure to extend the laws to such property.  The best advice is to do everything possible to prevent an issue in the first place by giving premises the appearance of occupation and ensuring they are as inaccessible as possible.