Under section 144 of the Legal Aid, Sentencing and Punishment of Offenders Act, a person commits the offence if he or she is:
- in a residential building as a trespasser having entered it as a trespasser;
- knows or ought to know that he or she is a trespasser; and
- is living in the building or intends to live there for any period.
The offence will be punishable by a maximum prison term of up to six months, a maximum fine of £5,000 or both. The offence is enforceable against those already in occupation of residential property and not just those who have entered occupation after 1 September.
The new offence does not extend to residential gardens, garden sheds or those who have fallen behind with their rent or remained in occupation of residential property at the end of their lease or tenancy. Nor does it extend to commercial properties, whose owners will still have to rely on the civil system to recover possession.
The change follows on from the Government’s public consultation last year on options for dealing with squatting and better protecting homeowners. The Property Litigation Association and the Residential Landlords Association supported the changes. However, the new law has been criticised by some, including the Criminal Bar Association and the Law Society, who opposed the creation of a new criminal offence on the basis the current law giving protection from trespass under section 7 of the Criminal Law Act 1977 was effective, albeit that only squatting in residential property which was currently, or about to be, occupied was previously criminalised.
Some commentators have expressed doubt regarding the police’s willingness to assist and attend properties given their limited resources. Queries have also been raised regarding how effective the police will be should they do so. Guidance would be welcomed with regards to how the police are to determine which party is being truthful should the squatters claim to have entered the building pursuant to a tenancy agreement or that they are only visiting the property.
Importantly, the new offence fails to address the treatment of mixed use property. Squatters may seek to exploit this significant gap in the legislation. The British Property Federation has also warned of the increased threat to commercial premises occupied by squatters.