Squatting: the precarious balance

Squatting is an increasing problem with more and more shortage of affordable homes. But it can also be a costly lesson for homeowners.

In 2003 Britain’s Advisory Service for Squatters estimated that there were about 15,000 squatters in England Wales. By 2010 this figure was approximately 22,000.

In the Ministry of Justice response (Options for dealing with squatters (26th October 2011), members of the Property Litigation Association reported that their clients incurred costs of between £3,000 and £8,000 in removing squatters. In the same report a local authority reported to have spent about £900,000 when 39 out of 45 flats were occupied by squatters. On the other hand Squatters’ Action for Secure Homes (SQUASH) pointed out that in 2010 there were 79,739 empty properties.

There have been many high profile cases in the media highlighting the distress of homeowners who temporarily leave/unoccupy their homes. The most memorable is that of Dr Oliver Cockerell and his pregnant wife in 2011 having recently brought a £1million house, only to find 14 squatters had taken up residence. Even celebrities are not immune; Guy Ritchie had to take action to evict squatters from his £6million mansion in Fitzrovia when it was taken over during renovation.

One solution suggested was criminalisation of the act. There was fierce debate on both sides in response. The result of the consultation in 2011 was section 144 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, which came into force on 1st September 2012.

This removes the need for home owners to obtain a possession order from a civil court to remove squatters; it is now a criminal offence punishable by fine (up to £5,000) or imprisonment (for a maximum of 6 months).

Has this worked? According to SQUASH, in January 2013 102 arrests had been made with 13 convictions. Time will tell.

But an unexpected hiccup of the legislation is the effect it had on adverse possession. The law had previously recognised and protected people who could prove (over an extended period of time), factual possession of land coupled with the intention to posses (without the owner’s consent).

But with the introduction of s144 and trespass now being a crime, it potentially prevented a valid claim for adverse possession under the Land Registration Act 2002.

This came to a head in the case of Mr Best (R (Best) v Land Registry (2014) EWHC 1370 (Admin)). Mr Best claimed that he was working on a nearby property to the one In question (“The Property”). He was informed that the owner had died and it was empty and vandalised. He entered in the Property and did works to it. He allegedly moved in at the end of January 2012 and had treated it as his own since 2001.

He made an application for adverse possession in November 2012. This was rejected by the Land Registry and he sought a judicial review of the decision. It was not disputed that he was in possession, but given that he had been living in breach of s144 since 1st September 2012, did not have the statutory length of time of occupation required. The court decided that for the purpose of an application for adverse possession, it was irrelevant whether the conduct relied upon was criminal or not. It was argued that there was a ‘parliamentary intention not to exclude adverse possession’ with the introduction of s144 and that this section was not intended “to throw a spanner into the delicate workings of the 2002 act, with random effects on the operation of adverse possession, all without a backward glance.”

But a word of caution as permission to appeal has been granted. And even if you can succeed on an application for adverse possession, you can still be prosecuted for the criminal act of ‘squatting’ of the property since 1st September 2012.

Further, this only applies to residential properties at the moment, although there has been call for criminalisation to be extended to commercial properties. This could mean a shift in squatters occupying residential homes who now seek out empty/unoccupied commercial buildings instead. An owner of commercial premises will still need to expend time and money to evict squatters so should therefore seek legal advice early on.