On the naughty step: Bait and Switch

I don’t read the Daily Telegraph. Frankly I’ve failed to see the point since it stopped featuring details of the salacious trial of the day as a regular fixture on page 3, because the rest of it was preposterous blimpish nonsense, mainly full of regret that Britain ever came off the gold standard. I was dimly aware that it had a re-design some years ago and was trying to be hip, which is like Tunbridge Wells re-branding itself as Barcelona, or the journalistic equivalent of dad-dancing.

Still, it is a broadsheet newspaper, with small print, a serif typeface and the occasional long word, so it has pretensions to being the kind of paper that writes about fairly important things and does so, by and large, accurately. Of course we can discount the comment section, but the news on those big broadsheet pages is different, surely?

I didn’t want to have to do another ‘media reports housing law badly’ naughty step so soon, really I didn’t. But the Telegraph and Ken Clarke’s merry band of ‘senior sources’ at the MoJ have driven me to it.

This time, we are to be reassured that big Ken is taking tough steps to rid us of the plague of squatters who are forcing millionaires out of their homes, then occupying them for 10 years and claiming adverse possession. No such slippery behaviour and legal loophole is going to get past our Ken, and the Telegraph is here to tell us why new laws are needed and how the proposed new law differs from the old.

But this time, unlike the Daily Mail, we have by-lined journalists to be rude about: Tom Whitehead ‘home affairs editor’ and Peter Hutchinson.

Tom WhiteheadLet us start with Tom Whitehead’s explanation of why a change in the law is needed, under the headline ‘Squatting to be made illegal’.

The new law will end the “nightmare” of home owners having to fight lengthy legal battles in the courts in order to evict squatters. Instead the police will be able to force entry and arrest anyone who has occupied a property.

There are an estimated 100,000 incidents of squatting every year with victims including Guy Ritchie, the film director. [...]

One squatter group, known as The Really Free School, has occupied a series of properties in London, including a building in Bloomsbury Square belonging to an antiques expert and a £6 million house owned by Mr Ritchie. Then they took over an empty pub near Oxford Street before moving on to another near Leicester Square.

Earlier this year, businessman John Hamilton-Brown was reduced to begging through his own letterbox for squatters to leave his £1 million home.

In 2009 squatters moved into David Blunkett’s former grace and favour mansion in central London while others took over a £33 million house close to Nigella Lawson’s home in Eaton Square, central London.

So, why are millionaires being reduced to begging through their own letter boxes? Why is Nigella Lawson having to be troubled by having a house near her home taken over?
Because:

Squatting is not currently a criminal offence in England and Wales and instead it is up to the owners to use the civil courts to enforce their rights, which can turn in to lengthy and expensive legal battles.

They must also prove to the courts that they are either a ”displaced residential occupier” – someone who has returned from holiday to find squatters in their house – or a ”protected intended occupier”, who is intending to move into an empty property.

In contrast, squatters are also protected by other laws, including the Criminal Law Act 1977, which prevents a home owner forcing their way back in because it makes it an offence to use violence to gain access when there is someone on the premises who is opposed to entry.

They can also take advantage of the controversial law on “adverse possession”, which can allow someone who has occupied a building for 10 years to claim ownership of it.

As anyone should know, particularly if they read Francis’ demolition of an Evening Standard story 5 months ago on this very blog, this is in large part utter nonsense, bilge and hogwash.

If one is a displaced residential occupier, or protected intended occupier, then the squatters are committing a criminal offence under section 7 of the Criminal Law Act 1977 and can be arrested. What is more, such an occupier can use force to enter their home and reasonable force to remove the trespassers.

But in order to remove trespassers, one doesn’t have to prove that one is a displaced residential occupier, or protected intended occupier. One just has to show that you have right to the land and that the trespassers are occupying without permission or authorisation. This is indeed a civil claim and can take some time.

Mr Whitehead appears to be presenting a con-fused botch of the current law, which is both inaccurate and has serious omissions. He either made this complete farrago up himself, or was sold a pup by Ken Clarke’s ‘senior source’ and didn’t bother to do the most elementary fact checking.

But alarm bells should be starting to ring. Let’s have a look at what that ‘senior source’ is quoted as saying:

“Ken has had enough of seeing hard working home owners battle to squatters out.

He is determined to use the full force of the law to save people from the nightmare of having to fight to get their houses back.

The days of ‘squatters’ rights’ will be over.”

Hmm. I’ll come back to this. But can one hope for clarity, or at least accuracy from the other article, which purports to set out the changes?

Mr Hutchinson’s brief exposition of the current law, which he (quite plausibly) attributes to the Home Office is that:

• Squatting is a civil offence against the landlord/owner of the property, which to all intents and purposes means that it is an unlawful practice, but not illegal.
• You can be convicted of a criminal offence if you have caused damage to the property by gaining entry, covered under the Criminal Justice Act 1994.
• Use of electricity etc is also a crime as it is theft.
• The landlord/owners are well within their rights to evict squatters, but they must go to a civil court in order to gain a possession order.
• Squatters do have limited rights. A landlord cannot remove you by violent or forced means, only through the legal process.

So, no. Not accurate. The same muddle of omissions and inaccuracies, in fact. And what of Ken Clarke’s proposals?

The new law will make squatting a criminal offence rather than a civil offence and end the lengthy process of home owners having to fight legal battles in the civil courts in order to evict squatters.

It will allow police to force entry and arrest anyone who has occupied a property. Squatters could even face a prison sentence under the plans if prosecuted.

Home owners don’t have to go through a lengthy process of legal battles in the civil court, as long as they are a displaced residential occupier, or protected intended occupier, so that much is bilge as before.

But what is now clear is that this situation isn’t the target of the proposals. It is not about the squatting of people’s homes – that is already a criminal offence – it is about the squatting of other property, unoccupied or without an intended occupier. The proposal isn’t even about ‘squatting’ per se. The proposal is nothing less than to criminalise trespass.

Naughty StepThe Telegraph, and Messers Whitehead and Hutchinson, have either made up this nonsense about people unable to recover possession of their own homes, or, as may be more likely, they have fallen for a bait and switch by the Home Office/MoJ, and been sold a juicy story about protecting homeowners, when the actual proposals are about something else entirely. Messers Whitehead and Hutchinson would appear to have swallowed it wholesale, without any checking whatsoever.

For this example of quality journalism, onto the naughty step they go.

[Edit update 20 March. Things get murkier. The Sunday Telegraph has a piece by Grant Shapps announcing the forthcoming change in the law and the release of booklets on property owners rights against squatters. I seem to recall these being announced quite some time ago, but assuming they contain the correct law (and Shapps does appear to have it more or less right), they would be a useful read for the Telegraph hacks. However, it turns out the the Sunday Telegraph has been running a campaign on tougher squatting laws, again banging on about homeowners, although their example is of a BTL landlord.

Now, criminalising trespass was Tory policy before the election. Mr Pickles, in particular, was very keen on it in relation to gypsy and traveller unauthorised parking up. It appears that the (Sunday) Telegraph going on about homeowners - and by the quotes, being encouraged to do so by the Home Office and MoJ - has given the Govt a convenient PR line on which to sell the proposal; that it is about protecting your home from nasty, freeloading artist types. It appears the Telegraph hacks have been what Lenin would have called 'useful idiots'. ]

Posted in Adverse possession, Housing law - All, Licences and occupiers, Various (non-housing) and tagged , , . RSS feed for this post and comments.

About

Giles Peaker is a solicitor and partner in the Housing and Public Law team at Anthony Gold Solicitors in South London. You can find him on Linkedin and on Twitter. Known as NL round these parts, and still is Nearly Legal on Google +

14 Comments

  1. Francis Davey
    Posted 19/03/2011 at 5:12 pm | link to comment

    If you take sensible advice, act promptly and don’t do anything foolish, then it is really quite quick to get squatters removed from a building or house. Much, much quicker than many other forms of legal action.

  2. Posted 21/03/2011 at 7:25 am | link to comment

    I agree. In the past I have got possession orders within 3 weeks. Also I understand squatters generally go for empty properties that are not being used rather than people’s homes.

    It is a fairly simple process to get an order for possession against squatters in fact I have written a kit which non lawyers have used very successfully.

    If squatting is to be criminalised, how do we know that the police will use their powers properly? They tend not to be very good on housing law.

    I worry that landlords may try to represent genuine tenants as squatters – they may even genuinely think they ARE squatters. Many people do not realise that tenancies continue quite legally on a periodic basis after the end of the fixed term.

  3. Posted 21/03/2011 at 10:14 am | link to comment

    So am I right in thinking under section 7 CLA 1977, squatters in a property can be removed by the displaced residential occupier, or protected intended occupier immediately? I just looked up the legislation and it seems under 7(6) police can arrest offenders without warrant. And if this is the case, why have the police not just removed squatters in the homes of these people in the headlines? Is it because, for example, Guy Ritchie was not an occupier?

    For my notes on squatting in a wider social context, see: http://tinyurl.com/6h3yc6j

    • Posted 21/03/2011 at 10:26 am | link to comment

      If the DRO or PIO has required the trespasser to leave, then yes. (The PIO requires a statement in writing to the effect that he is a PIO signed and witnessed by a Justice of the Peace or Commissioner for Oaths – see 12A CLA 1977. Hardly difficult).

      And the answer to your second question is probably – yes, these were not ‘homes’. Although it also has to be said that the police don’t necessarily have the right idea about rights and powers in this regard.

  4. Matt Wardman
    Posted 21/03/2011 at 5:51 pm | link to comment

    This seems to be a can of worms.

    I firmly support bringing English and Welsh law more into line with Scottish, not least because we are now seen as somewhere where properties can be occupied with no consequences.

    Much squatting already involves criminal activity – breaking and entering or incitement to do so – though it is childs play to avoid the law by getting a friend, or one of the professional housebreakers advertising services on squatter websites, to do it and lie to the police afterwards.

    This should have been dealt with in the Housing Act which has opened the way to wider publication of lists of “targets” – aka public registers of ‘licensed’ property – by Councils. But it wasn’t.

    We also can’t ignore wider consequences. Consider, for example, the legal community project which has now been poleaxed by the squat of Deptford Job Centre, or the extra expenses forced on tenants by the cost of legal proceedings and time to regain possession – all of that goes, in the end, on the rent.

    • Posted 21/03/2011 at 8:42 pm | link to comment

      Matt, I carefully didn’t go into the political or moral issues around the proposals, although I would say that emotive cases make bad law and that the law on trespass has always been and remains a deeply political issue My concern in this post was the Telegraph’s failure to get to grips with the law as it stands and its misrepresentations of it.

      On the proposed new law, one of the consequences that interests me is the effect on adverse possession. What is the position in Scotland on adverse possession, given the criminal law on squatting?

  5. CJ
    Posted 21/03/2011 at 8:56 pm | link to comment

    This discussion also has other repercussions – plus it has all been fully assessed by another government department. Due to successive failures of both central and local government (from the Caravan Sites and Control of Development Act 1960 onwards) to provide permanent and transit sites for Gypies and Travellers, a very large proportion of that population have no alternative but to trespass. In their pre election Green Paper (Open Source Planning) the Tories, in a section about Gypsies and Travellers, floated the idea of criminal trespass (I should add that at present and as pointed out in this discussion, there are circumstances where trespass can be criminal). The Department of Communities and Local Government (in what I presume is a concession to the Lib Dems?) dropped that idea last year. It seems they haven’t told Mr Clarke yet.

    • Posted 21/03/2011 at 9:25 pm | link to comment

      Chris – yes, as I noted in the update at the end, this was pre-election policy and floated by Mr Pickles in relation to Gypsies and travellers. But this time round it does seem to be, at least in part, coming from the DCLG. Note Mr Shapps support and attempt to link himself with the proposals in the Sunday Telegraph (link in the post).

  6. Occam
    Posted 21/03/2011 at 9:55 pm | link to comment

    [Edited by NL for a) missing the point of the post entirely and b) for thinking that his anecdotal experience means that he can spout his rightness even though irrelevant to the post at issue . A sadly inaccurately chosen pseudonym, Occam being associated with both precision and logical clarity.]

  7. Occam
    Posted 22/03/2011 at 10:41 am | link to comment

    Of course its your site you can edit or delete posts as you wish. I would point out that my direct experience is exactly why this law needs to be changed. In the three weeks that it takes to evict squatters under the current system they will have covered your house with graffiti done thousands of pounds of criminal damage and then walk away leaving you without any recourse.

    I realise that to those who work in the legal profession it is all just a game. A game that pays well, but hopefully that gravy train will slow down a bit whit the changes in legal aid that are on the way.

    The courts are fooled time and time again by the lies of these people. “The front door was open when I tried it”
    “This is the first night I have been here”
    “This is how I found it” etc etc

    Because of the ineffectiveness of the current law the police have completely given up enforcing it. They will not confront squatters even when they are caught red handed breaking and entering. The squatters know that the system is on their side, if an owner tries to gain entry the squatter will call the police!

    The recent piece in the Daily Telegraph was incorrect in that it centred on a “Legal Loophole”. This was not a loophole but an idiot judge who swallowed the lies presented to him.

    • Posted 22/03/2011 at 11:27 am | link to comment

      Occam, I was going to apologise for the summary deletion of your comment – I was in a bad mood last night – but then you do exactly the same thing again. So, my point remains. The post is about the Telegraph misrepresenting the law as it stands. Your comments aren’t about that at all. Simply because someone has mentioned squatting without suggesting that all squatters should be strung up from the nearest lamp-post appears to have put you in knee-jerk mode.

      So, to take your comment in the spirit in which it was made, your comments about games, gravy trains and legal aid are not just wrong, but stupidly so.

      Your demand for a change in the law based on your own experience is, from the position of anyone who either makes or works with the law, equally stupid. A mere moment’s reflection – too much to ask, I know – would tell you that such a law would cover a vast range of situations, not just yours, and that the legal consequences for that range of situations need to be thought through.

      Now please save your knee jerking for somewhere they might appreciate it.

      • Occam
        Posted 22/03/2011 at 8:45 pm | link to comment

        Thank you for your considered reply. Sometimes it helps to get things off your chest. Obviously I am not a lawyer. My perceptions of the current system are just that. They may be wrong in your view but they are my experience of it.

        As a “layman” “the law” to me is the whole process including the police. I should perhaps refer to this as “the way the current law is enforced” or more correctly “not enforced”.

        Access to “the law” for normal middle of the road tax payers is very expensive, slow and frustrating.

        I would be most interested to know with regards to the comments of Francis below, as to how the courts would enforce damages against the sorts of squatters common here in Bristol.

        The problem with “the law” is that is assumes that people are under its jurisdiction and will conform. My experience of squatters is that they are completely outside of it.

        • Posted 22/03/2011 at 9:35 pm | link to comment

          Occam

          First, the law and the courts are very distinct things from the police. The police are not at the court’s beck and call and don’t do the court’s work.

          Problems with getting the police to enforce are not a problem with the law, and, as Francis pointed out, have to be dealt with otherwise.

          If there was damage to the property, that is a criminal act. Back to the police.

          On civil damages, it is for the claimant to seek to enforce an order, through the court. The court doesn’t do it by itself. There are mechanisms (attachment of earnings, charging orders, distress of goods, etc.), but these are of limited use against people with no identifiable assets. But what would be?

          If you suspect they have assets, there are always enquiry agents, but they cost.

          A judgment for damages can be enforced for years after, so there may be that chance.

          Perhaps this gives you an idea why we are a bit cynical about whether a change in the law, even a major one, would be the panacea you seek.

  8. Francis Davey
    Posted 22/03/2011 at 11:41 am | link to comment

    It shouldn’t take longer than a 1 week from start to effective IPO served on a squatter if a claimant gets their act together (faster in many cases). It may mean bullying the court to get a hearing, but I’ve never had difficulty getting things moving. Its then a criminal offence for the squatters to remain. I don’t know where the “3 weeks” figure comes from. Its not in my anecdotal experience.

    The failure of the police to get involved is not confined to squatters. We (on this blog) often complain about their being ineffective against landlords unlawfully evicting their tenants. Changing the substantive law won’t affect that – to get the police to act requires a different kind of reform.

    Not all squatters commit criminal damage – I’ve evicted both kinds and some actually do the place up. The only difference that makes (to the court) is whether and to what extent damages are awarded.

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