It has been an offence to ‘squat’ in residential property since 1977 but the old law was rarely enforced.
It will come as little surprise to most property litigators that the bringing into force with great fanfare, and subsequent enforcement, of section 144 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 on 1 September last year has resulted in a fall in squatters targeting residential properties, but an increase in squatting of commercial premises.
That increase, and a number of high-profile cases of squatting of public buildings, have led to calls for the law to be extended to cover commercial premises.
Practical effect of the act
Whether the new provision was really necessary is now, frankly, irrelevant. The old law was not being enforced by police; the new law, anecdotally at least, is.
Concerns that squatters would rely on potential loopholes in the legislation (for example, by informing police they are a former tenant or the victim of a fraudulent letting) do not seem to have materialised so far; although regular squatters may well learn to attempt such tactics in time.
The Crown Prosecution Service recently revealed that between 1 September 2012 and July 2013,
69 people were charged under the new provision. In reality, hundreds if not thousands of squatters will have been rapidly moved on (without arrest) upon the attendance of police as a direct result of the passing of the act.
So why should the law be extended to commercial property?
Given the apparent practical success in respect of residential properties, why not? The potential loopholes in the residential legislation would be more difficult to apply in a commercial context. But assuming the anecdotal evidence is supported by reliable statistics, and assuming enforcement by police continues, one can immediately see the advantages.
At present, a landowner discovering squatters in his property is unlikely to be assisted by police without clear and unequivocal evidence that a criminal offence has been committed. Evidence of forced entry is almost never enough to persuade the police to intervene. The landowner has no choice but to pursue possession proceedings. Putting aside the cost of this, the time it takes to obtain an order and enforce it is too long.
By the time solicitors have been instructed, evidence obtained, and proceedings drafted and issued, several days will most likely have passed. It will then probably take at least a week to obtain a hearing date (and potentially much longer). Once an order is obtained, enforcement through the county court bailiffs can take a further three to six weeks. By then considerable damage might have been caused and contractual deadlines missed.
While obtaining an Interim Possession Order instead can remove occupiers quicker, this is only possible in certain cases and will still usually take at least a week.
Obstacles to any change
From a personal point of view, it is difficult to see the downside of extending the law to commercial property. Yes, any new legislation will need to be carefully drafted, but it is certainly possible.
However, on the wider level, there is undoubtedly a case for considering not only that this will leave some vulnerable people with few places to go, but also the further burden on public resources. It is argued on public policy grounds that commercial property left empty for extended periods of time should be exempt from such a change.
There is no rational basis for treating residential and commercial landowners differently. The potential difficulties are the politics and costs associated with such a change. That may mean it never happens – something property litigators might, secretly, be hoping for.
Simon Allison is a barrister at Hardwicke Chambers
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