Squatting: The MoJ Guide

We have had a lot to say about squatting. In fact those of you who are quick may even be able to see one of the authors of the blog on television talking about it today!
With the new legislation criminalising squatting due to come into force at the weekend (presumably to catch out those sunday morning squatters!) the Ministry of Justice has issued a circular to Judges, Courts, and the Police.
The circular starts with a statement that the new legislation will “protect owners .. of any type of residential building.” This of course ignores he point that they were already protected.
The circular makes clear that the new offence does not apply to tenants who remain in a property, even if they are in breach of their tenancy agreement. It then goes on to state that the offence is only committed if a person knew that they were a squatter and it is also not intended to apply to individuals who have occupied a property in good faith believing themselves to be tenants. However, the circular also tries to contend with the obvious problem that every squatter will claim to have been the victim of a fraud by stating that it would be reasonable to expect a person claiming this to produce a tenancy agreement or similar. However the circular does make clear that the offence is committed by someone who takes on a squatted property from another squatter.
The circular also bizarrely points up the errors in the new offence. So para 11 makes clear that it does not apply to a person squatting in a building that has not been designed or adapted for residential use, even if the squatter has done some adaptation themselves. In addition para 19 makes clear that the original squatting offences under s7 Criminal Law Act will be kept. This is because the definition of a property under the CLA offence is wider and so if you squat a garden or a garden shed you will not be committing an offence under the new legislation but you would be committing an offence under the CLA if you did not leave when asked by an appropriate person.
In an effort to respond to complaints that this new legislation attacks the homeless there is a statement that the police may wish to liaise with homelessness service providers before taking action to clear buildings known to house rough sleepers. Whether they will or not remains to be seen.
Surprisingly, there is absolutely nothing in the circular that will deal with the issue that plagued the current legislation. This was the consistent refusal of the Police to act and the regular assertion that it was a “civil matter”. If the government really wants to change things and address the complaints of homeowners then they need to make sure that the police act on problem squatting rather than seeking to attack the homeless. If they just want to be seen to do something for show then they are going the right way about it.

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About

David is a solicitor specialising in landlord and tenant matters with Anthony Gold Solicitors. He particularly specialises in newer legislation and has written widely on the Housing Act 2004.

17 Comments

  1. Tom (iow)
    Posted 31/08/2012 at 11:08 am | link to comment

    This is more or less what I was just saying to my colleagues this morning. It would have been better to amend the CLA to say “it shall be the duty of a chief constable, where evidence is presented alleging an offence under this part, to investigate and prosecute the alleged offence”

  2. Chris
    Posted 31/08/2012 at 11:09 am | link to comment

    Rather interestingly I have a client that has occupied a flat for 10 years and is in the process of making a claim for the leasehold with the Land Registry.

    They are going to be criminals as of this weekend. However, shortly thereafter they could be the legal owners.

    The landlord is aware of the occupation but has done nothing.

    In fun theory land they could be arrested and then have the current landlord arrested under this law if they obtain the title.

    I also wonder how the Courts are going to deal with Article 8 defences as they are likely to come up.

    Legislate in haste repeal at leisure.

    Who wants to run a book on how long it’ll be before a landlord uses this to harass a tenant out of the property.

    • Posted 31/08/2012 at 4:25 pm | link to comment

      The interaction with adverse possession is going to be difficult. Not least as it makes adverse possession gaining from a criminal act.

      It is already clear some PRS landlords think this means their ‘tenants can’t stop paying rent’ (comments on the BBC site from a landlord). So harassment looks like a virtual certainty.

  3. Geoff Ingarfield
    Posted 31/08/2012 at 11:06 pm | link to comment

    Wasn’t the whole point of the 1977 CLA to criminalise ‘squatting’ by making it an offence of ‘criminal trespass’? If so, the new legislation isn’t really makng ‘squatting a crime, because it already is. As other posters have said, the problem with the CLA provisions was failure of enforcement.

    This all sounds a bit like the various ‘new’ laws to deal with anti-social behaviour, that simply replicated powers for local Councils and the police that already existed.

    • Posted 02/09/2012 at 12:19 pm | link to comment

      Its a bit silly when government has to keep making new laws about the same thing until finally the Police decide to enforce them as intended!

      Or do the government still not realise that there have previously been laws on this point?

  4. Mike
    Posted 02/09/2012 at 9:59 pm | link to comment

    “The circular … goes on to state that the offence is only committed if a person knew that they were a squatter and it is also not intended to apply to individuals who have occupied a property in good faith believing themselves to be tenants.”
    So those Romanian gypsies in London who hold bogus tenancy agreements in their hands when they enter already occupied private houses would still not be committing any offence?
    Weren’t these cases what most of the recent fuss was about?

    • Posted 08/09/2012 at 6:13 pm | link to comment

      Indeed, that was my impression. It is hard to see how anything has changed for them.

    • Posted 10/09/2012 at 10:03 pm | link to comment

      Paradoxically the old Criminal Law Act 1977 (Section 12A) (ie the 2001 amendment) probably provides more protection than the new law for residents faced with Romanians etc who have been given phoney leases by criminal types. The CLA gives no ‘good faith’ exemption to those squatters who think they have a right to be in the property. When the real occupier goes through the prescribed and quite simple procedure, the squatters become criminal if they don’t leave, whatever their belief.

  5. Rentergirl
    Posted 03/09/2012 at 12:30 pm | link to comment

    And we all know how the police don’t know the law on housing, don’t bother to find out, immediately believe, and side with, the landlord. Buckle up – it’s going to be a fun ride.

  6. David Smith
    Posted 04/09/2012 at 12:12 am | link to comment

    As a follow up to my post it seems that the Police might be prepared to utilise the new legislation. This report appeared on the Sussex Police website this afternoon:
    http://www.sussex.police.uk/news-and-events/news/2012/09/03/squatters-in-brighton/
    It is not clear from the report whether the police could have in fact acted under the CLA or whether a prosecution will result.

  7. Newbie
    Posted 04/09/2012 at 3:56 pm | link to comment

    *Groan*. Unfortunately it seems that the Police are going to go on being either heavy handed and immediately evict anyone the Landlord points their finger at, or ignorant and suggest that its a “Civil Matter”, ignoring it completely. I’d ask what Grant Shapps was thinking, but I doubt he was thinking at all.

  8. CJ
    Posted 04/09/2012 at 10:49 pm | link to comment

    I’m left with two lovely images after that post by David.
    At Nearly legal Towers:
    ‘Have you checked the Sussex Police website today, Dave?’
    ‘Damn, I forgot. I’ll do it now… I see there’ve been two arrests about the Crawley burglaries’
    Meanwhile at Sussex Police HQ;
    ‘Three of them used super-glue,sarge’
    ‘You know what that is, my son, that is a clear intention to reside’
    ‘Brilliant deduction,sarge’

  9. David Smith
    Posted 06/09/2012 at 2:29 pm | link to comment

    By way of yet another small update, the CPS has now updated its guidance on prosecution for squatting to include s144 offences. Much of it is a repeat of the MoJ circular. However, there is some new material in regard to whether the discretion to prosecute should be exercised. The CPS has flagged availability of other housing options and use of utilities as relevant considerations.
    Full CPS guidance here:
    http://www.cps.gov.uk/legal/s_to_u/trespass_and_nuisance_on_land/index.html

  10. Posted 13/09/2012 at 5:12 pm | link to comment

    I have compiled a rough and ready guide to the issues that are likely to clog up court time on criminalisation of squatting – and why the police should be wary before stomping into squats in their size-nines: http://thinkinglegally.wordpress.com/2012/09/13/criminalisation-of-squatting-protection-of-property-could-crumble/
    Comments, additions welcome

  11. Jim Paton
    Posted 30/09/2012 at 1:30 pm | link to comment

    The MoJ guidance is wrong on what the legislation says. It says that the provision exempting ex-licensees from section 144 does not apply to ex-licensees who originally entered as trespassers. There is no warrant for that in the legislation whatsoever.

    Police don’t have a clue what is, and what is not a licence anyway, of course.

    As for the conviction reported in the Evening Standard, two fact stand out:

    The place had been empty since “2011″ -no more exact date given.
    L&Q found out it was squatted only when trying to show the flat to a new tenant in August, (or late July at the earliest) 2012. So that’s a re-lettable flat standing empty for 8-20 months, and L & Q had no idea it was squatted.

    • Posted 30/09/2012 at 3:06 pm | link to comment

      Err Jim, where does the Guidance say that?

      On the Haigh case, L&Q have denied that the property was empty since 2011 and are saying it was vacated on 19 August 2012, they found the squatters when taking someone to view on 24 August. Not entirely sure that holds up, but makes no difference in terms of the operation of s.144 anyway.

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