SQUATTING UPDATE. Mary Martil Batchelors Solicitors

Transcription

1 SQUATTING UPDATE Mary Martil Batchelors Solicitors

2 WHAT WE LL COVER SQUATTERS RIGHTS? CIVIL REMEDIES The Summary Procedure Interim Possession Orders CRIMINAL SANCTIONS Displaced Residential Occupiers and Protected Intended Occupiers Section 144 Legal Aid, Sentencing and Punishment of Offenders Act 2012

3 SQUATTERS RIGHTS Notices used by organised squatters Section 6 Criminal Law Act 1977 if you use or threaten to use violence to secure entry to any premises it will be a criminal offence in certain circumstances. Namely where: - There is someone present on the premises at the time who is opposed to the entry - You know that to be the case - You do not have lawful authority The fact that you are the owner does not of itself constitute lawful authority Hence squatters notices informing you that they are there, are opposed to you entering and that you will be guilty of an offence if you seek to force entry Note that, you are free to enter and secure in the squatters absence

4 THE SUMMARY PROCEDURE (1) Traditional route Apply to the local county court for possession using short process specific to trespasser cases claim for possession against Persons Unknown N5 Claim Form, N121 Particulars of Claim, Office Copy Entries/Lease, Court fee of 175 Hearing date minimum 5 days notice for residential premises, 2 days notice if non-residential/land Special method of service one copy papers posted to the door in plastic wallet and another through the letterbox addressed to The Occupiers ; if land copies in plastic wallets attached to stakes Court hearing order for possession forthwith court does not have discretion to give longer. Court of Appeal cases McPhail v Persons Unknown 1973 and Swordheath Properties Limited v Floydd 1977

5 THE SUMMARY PROCEDURE (2) What about human rights? We know from the Supreme Court in Pinnock and subsequent cases that, even where a claimant has an absolute right to possession under our domestic law, a county court judge will nevertheless have the power to consider proportionality in the light of an occupier s Article 8 human right to respect for home and family life Is this likely to result in trespassers being given more time or possibly being allowed to stay? Birmingham City Council v Lloyd, Court of Appeal, 4 July 2012

6 THE SUMMARY PROCEDURE (3) Enforcement is through the county court bailiff Warrant of possession can be applied for immediately upon the making of the forthwith order Request for Warrant of Possession and court fee of 110 Bailiff need give squatters only 24 hours notice of appointment

7 INTERIM POSSESSION ORDERS Sections 75 & 76 Criminal Justice and Public Order Act 1994 Perception that removal of squatters not always speedy enough under traditional route An initial or interim order can be obtained without the squatters being given prior notice, making it an offence for the squatters to remain on premises or ancillary land, police can arrest them if they fail to leave, on notice possession hearing can take place at later date Claim in the local county court, N5 Claim Form, N130 Application for an IPO, witness statement, Court fees of 220 Service of papers on squatters within 24 hours of Application being issued, using the special method Hearing of Application after minimum of 3 days from date of issue IPO may be made, hearing date for possession will be fixed Service of IPO within 48 hours of order being sealed, using the special method

8 INTERIM POSSESSION ORDERS (2) IPO requires squatters to vacate within 24 hours of service and not return as a trespasser within 1 year Failure to comply is an offence police can enter and arrest Further (possession) hearing takes place In practice? - Technicalities claim within 28 days of knowledge, precise times i.e. 24 hours, 48 hours, may have to give undertakings - Speed minimum 3 day wait for initial hearing - Cost more preparation, 2 hearings, 2 or 3 sets of service - Enforcement police not always willing to assist Has not proved as popular as anticipated

9 DISPLACED RESIDENTIAL OCCUPIERS Section 7 Criminal Law Act 1977 It is an offence for any person who is on residential premises as a trespasser, after having entered as a trespasser, to fail to leave on being required to do so by or on behalf of DRO DRO is any person who was occupying any premises as a residence immediately before being excluded from occupation by someone who entered as a trespasser DRO status continues to apply, so long as that person continues to be excluded by the original trespasser or any subsequent trespasser DRO status is not lost, even where that person has allowed the trespasser time to leave the premises. Police can enter and arrest Section 6 offence using or threatening violence to secure entry does not apply to a DRO

10 PROTECTED INTENDED OCCUPIER (1) Sections 7 & 12 Criminal Law Act 1977 A PIO is someone who: 1. Has a freehold or a leasehold interest in the premises with not less than 2 years still to run 2. Has a tenancy of, or licence to occupy, the premises which has been granted by the holder of a freehold or leasehold interest with not less than 2 years less to run or 3. Has a tenancy of, or a licence to occupy, the premises which has been granted by a local authority or other registered provider AND WHO: 4. Requires the premises for his own occupation as a residence; and 5. Is excluded from occupation by a person who entered them as a trespasser

11 PROTECTED INTENDED OCCUPIER (2) There must be an appropriate written statement, held by the PIO or someone on his behalf, effectively confirming the facts which establish the status Where PIO is freeholder/leaseholder, PIO s signature on statement must be witnessed and endorsed by a Justice of the Peace or Commissioner for Oaths In the case of a PIO who is a private tenant or licensee, the statement must be signed by both the tenant and the landlord In the case of a social tenant, the requirement is that the local authority or other registered provider which has granted the tenancy or licence, has provided a certificate stating that fact PIO statement or certificate must be produced to the trespasser at the time he is requested to leave

12 PROTECTED INTENDED OCCUPIER (3) It is an offence for any person who is on residential premises as a trespasser, after having entered as a trespasser, to fail to leave on being required to do so by or on behalf of PIO Police can enter and arrest Section 6 offence using or threatening violence to secure entry does not apply to a PIO

13 THE NEW OFFENCE Legal Aid, Sentencing and Punishment of Offenders Act 2012 Section a person commits an offence if: 1. The person is in a residential building, as a trespasser, having entered it as a trespasser 2. The person knows or ought to have known that he or she is a trespasser and 3. The person is living in the building or intends to live there for any period

14 NOTE THAT THE NEW OFFENCE: Does not replace any of the pre-existing remedies described above, but provides an alternative to them in most cases involving residential premises Applies regardless of whether the squatters entered the property before or after the new provision came into force Can be committed only by someone who entered the premises as a trespasser, it does not apply in a case where consent to occupy was initially given but has been withdrawn Is not committed where the trespasser entered into occupation in good faith, reasonably believing that permission had been given e.g. through a bogus agent or tenant Will be committed, however, where the squatter has simply taken over from a previous trespasser Can only be committed by someone who is living in the premises or intends to live there

15 IN THEORY No need for the registered provider to issue civil proceedings or incur legal costs, or for a tenant to technically establish status as a DRO or PIO All that will be needed is a complaint to the police, who can investigate and who will be able to enter premises and arrest squatters, or suspected squatters, for the act of squatting Squatters may be prosecuted in the Magistrates Court and, if convicted, sentenced to imprisonment for up to 6 months and/or a fined up to 5,000

16 WHAT TO EXPECT IN PRACTICE? Police have expressed concern about the impact on community relations, local policing objectives and costs. Need to prioritise and lack of resources - police may not be able to respond promptly to all reports received Police have also identified issues of management of expectations and proportionality what if squatted property is not due to be put to any immediate use? Providers may wish to liaise with their local police forces, to establish what policies and procedures they will be putting into place It will be useful to establish a point of contact, on both sides, for squatting cases Once a provider knows what to expect from the police in terms of speed, level and circumstances of enforcement, it will be able to take an informed decision about the best remedy to pursue against squatters in any particular case

17 IMPACT ON THE HOMELESS AND VULNERABLE The vast majority of the responses to the government s consultation carried out prior to the introduction of the new offence were from members of the public concerned about the impact of criminalising squatting Many of those were in support of a campaign organised by Squatters Action for Secure Homes who argue that squatters put empty buildings to good use Responses from various charities focussed on the homeless and vulnerable and the government acknowledged, in its Summary of Responses, that it will be important to put such persons in touch with relevant support agencies Guidance now available from the MoJ suggests that, particularly in areas where squatting is prevalent, local authorities, partner agencies and the police should liaise to develop a protocol for dealing with persons arrested who claim they are homeless

18 SQUATTING UPDATE Q & A Mary Martil Batchelors Solicitors Bromley and Gray s Inn London mmartil@batchelors.co.uk