National Landlords Association Consultation response: Options for Dealing with Squatting
Introduction 1. The National Landlords Association (NLA) exists to protect and promote the interests of private residential landlords. 2. With approximately 20,000 individual landlords from around the United Kingdom and over 100 local authority associates, it provides a comprehensive range of benefits and services to its members and strives to raise standards in rented accommodation. Is Squatting a particular problem in your area and where does it occur the most, e.g. in residential or non-residential property? Were these properties empty/abandoned/derelict before they were occupied or were they in use? 3. Unfortunately, the NLA does not have any empirical data on the incidents of squatting among our members. Anecdotally, we do receive many calls from members to our Advice Line about squatting and what to do. However, it is not always clear whether this is actual squatting (i.e. that which would constitute an offence if the definition outlined at paragraph 21 of the consultation document becomes law) or whether it is either tenants who have refused to leave a property at the end of their fixed term tenancy and stopped paying rent (what is termed a tolerated trespasser ) or where the tenant has left the property but a friend or relative has remained in occupation (what is termed a permitted occupier ). We would suggest the majority of calls to our Advice Line concern the two latter scenarios. 4. Our response to this consultation will only deal with actual squatting. 5. The NLA only represents the residential property sector. We are therefore unable to provide informed comment on the problems associated with, or frequency of squatting in nonresidential property. 6. It is also important to note that landlords do not leave properties empty without legitimate reason; some property investors do, but by failing to seek tenants they do not fall into the category of landlord. Landlords run lettings businesses and to leave a property empty would be very inefficient in generating a rental income. The only times a landlord would leave a property empty is either whilst new tenants are being sort, or during major renovations. 7. The NLA does provide guidance to landlords on how to avoid squatting if they do have empty properties. The advice suggests making the property look occupied: Put lights, TVs and radios on timers; Leave curtains and blinds at the windows; Regularly cut any grass and do the garden; Clear mail and rubbish away from any exterior doors; Inform the neighbours that the property is empty and ask them to keep an eye on the property, providing contact details in the event of any suspicious activity; and Most importantly make sure that all doors and windows are locked securely.
8. With regard to the occupation of a property when it is becomes a squat, we can only rely on anecdotal evidence. Our Advice Line has received reports of squatters moving in to properties whilst major renovations are being undertaken. Please provide any evidence you have gathered on the number of squats and the nature of squatting in your area or nationwide. 9. As mentioned in the previous answer, we are unable to provide empirical evidence. Some of our members have reported to the Advice Line that their properties have appeared on squatters websites. 10. We are also regularly contacted by the media to talk about squatting and associated criminal activity. In particular, our most regular enquires centre around cannabis cultivation. Such criminal activity can cause significant structural damage to properties; we have heard of several incidents where loft cavities have been used and internal walls knocked down to increase growing space (without consideration for the structural integrity of the property). We have also been told of examples where irrigation systems have been installed. 11. Further, due to the cultivation of cannabis requiring large amounts of electricity (to power the heating and lighting systems) we have also heard of examples where the mains electricity has been by-passed (to avoid detection through utility meters). This causes a significant fire risk as wiring is rarely done by professionals and we have had experience of properties catching fire as a result. This not only causes devastating damage to the property itself but can also affect neighbouring properties (in a terraced street for example or where a residential property is located above a commercial unit). Do you have any data or other information on the demographic profile of people who squat e.g. do they share any protected characteristics set out in the Equality Act 2010 (age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation). Do they live alone or with others? 12. We do not have any such information and therefore cannot answer this question. Do you think the current law adequately deals with squatting? Please explain your reason. 13. We do not believe the existing law adequately deals with squatting. 14. To avoid duplication, the reasoning behind this view is set out in our response to the next question.
If you have taken steps to evict squatters from your properties, what difficulties have you encountered (if any) in removing squatters from your property using existing procedures? Have you had any positive experiences of using existing procedures? 15. The NLA itself does not have experience of evicting tenants. However, our members do. We are told that removing squatters can be very difficult, time-consuming and expensive: 16. In cases of traditional squatting where our members have called the Police, we are told that the Police are not prepared to gain entry to the property and inform the landlord that it should be dealt with as a civil matter. It has been suggested this is due to an understandable fear by the Police that they themselves may become subject to vexatious accusations made against them by the squatters which could result in their prosecution. Therefore, unless there are obvious signs of forced entry, it is our view the Police are unlikely to get involved in cases of squatting. 17. Similar to the previous paragraph, landlords also fear retribution and/or unscrupulous accusations from the squatters if they exercise rights under Section 6 of the Criminal Law Act 1977 (this point is discussed in greater detail later in the submission). However we would like to note that NLA guidance suggests landlords should not attempt to re-enter the property and should not cut off power or water supplies as such actions may be construed as offences. 18. Interim Possession Orders are complex and the court is required to be concerned with the defendants (the squatters) interests. It is suggested in the Court Guidance Notes 1 that landlords give undertakings to allow the squatter back into the premises and pay them damages if an Interim Possession Order is made and the court later decides the landlord was not entitled to the Order; and not to let the premises to anyone else or dispose of any of the defendant s possessions until the court makes a final decision on the landlords right to possession. Whilst the guidance notes state it is not a requirement that landlords must give these undertakings, it does say the court will take into account a landlord s willingness to do so when deciding whether or not to grant an Interim Possession Order. Such undertakings are onerous on landlords who are merely trying to regain possession of their own property and may put many off making such claims. Further, even if the Interim Possession Order is granted, the landlord is constrained in what he can do with his property until the full Possession Order has been granted at a later hearing. 19. Interim Possession Orders cannot be used to claim damages. Therefore, the landlord often has to write-off considerable sums of money to repair damage caused by the squatters in order to get them out of their property before more damage is caused. 1 Squatters - Interim Possession Order, a quicker procedure - Information for owners and tenants, Her Majesty s Court Service (HMCS), EX332
20. The NLA does not collect data from its members pertaining exclusively to obtaining possession following an incidence of squatting, there are parallels which may be drawn between this legal process and the time taken to regain vacant possession following a legitimate tenancy. 21. In respect of a legitimate private let, the possession process can take several months. The NLA run four surveys each year in conjunction with BDRC Continental. We last asked our members about the length of time it has taken them to regain possession of the property in Q.2, 2010 (this relates to all possession claims and not solely cases involving traditional squatting): Up to 3 months 56.5% 3 to 5 months 24.1% 6 8 months 12.1% Over 12 months 1% It should be noted that during this time in a squatting case, landlords will not be receiving any rent but will still have to pay mortgages, service charges, insurance premiums, etc. Indeed, 16% of those surveyed stated it cost more than 1,000 to regain possession of their property. 22. It is also important to note that claiming damages against squatters is usually ineffective. Should the property be damaged as a result of the squatters habitation, any damages awarded by the Court (or any Order for Costs) are usually unpaid. This is because the squatters generally do not have the financial means to pay upfront and are not always in receipt of benefits therefore a Collection Order is ineffective. 23. We are not aware of any noteworthy positive experiences from using existing procedures. Do you think there is a need for a new criminal offence of squatting? 24. We agree with the view expressed in paragraph 20 of the consultation document that there is a need to send a clear message that squatting in people s homes, business property or any other type of private or public building is wrong. 25. However, we do not see the need to create a new criminal offence of squatting. We believe the rights of the property owners should be put at the centre of any policy decisions on squatting. This course of action centres entirely on the squatter and leaves the property owner as a secondary consideration. 26. For the NLA, the key question is when would the property owner regain lawful vacant possession of their property? If squatting is a criminal offence, would it be once the alleged squatter is arrested, charged, or at the conclusion of a criminal case and only when the criminal charge is proven?
27. Further, if the answer to our question in paragraph 25 above is at the conclusion of criminal proceedings, would a Magistrate or District Judge be empowered to grant a Possession Order or would the case need to be committed to the Crown Court for a Circuit Judge to issue a Possession Order? Alternatively, would a separate civil case be required and a Possession Order granted by a civil judge? 28. There is also the issue of criminal procedure. It is common custom that criminal cases are dealt with first and any civil case suspended pending the outcome of the criminal action. Therefore, unless the mere act of arresting (or charging) a person with the new offence of squatting will be sufficient for a property owner to gain lawful vacant possession of their property, then the criminal case must be dealt with before the property owner can begin any civil case for possession. This is likely to dramatically increase the time it takes for a property owner to regain lawful possession of their property. 29. We would also question whether the lawful vacant possession of a property automatically returning to a rightful owner or occupier on the arrest (or charge) of someone for the criminal offence of squatting would be in accordance with human rights legislation. However, as a trade association, we do not have the formal legal expertise to comment definitively on this but do believe the issue needs to be explored. 30. We agree with the view expressed at paragraph 22 of the consultation document that such a new offence should not extend to tenants who occupy a property with the permission of the owner, but later refuse to eave (e.g. following a dispute about rent payments). Such a course of action could result in spurious accusations against tenants from unscrupulous rogue landlords. If so, do you agree with the basic definition of squatting set out above (i.e. the unauthorised entry and occupation of a building)? 31. Whilst we do not agree there is a need for a criminal offence, we do believe that a statutory definition of squatting would be beneficial and would therefore like to make some comments on the proposed definition. 32. It is important to consider the burdens of proof in a criminal offence against those in a civil case. The proposed Actus Reas (as outlined at paragraph 21 of the consultation document) could cause evidential difficulties. If there are no signs of forced entry, it may be difficult to establish, beyond all reasonable doubt (or certain so that you are sure ), that the person entered the property as a trespasser. 33. Further, if an alleged squatter has in their possession a tenancy agreement (that has either been purchased or downloaded from the internet) and the property owner denies providing such a tenancy agreement, the case will hinge on one persons word against the other. In a civil case, where the evidential burden is on the balance of probabilities, a County Court Judge may take the view that it is more likely than not that the tenancy agreement is not genuine. However, because of the criminal burden of proof, a criminal judge must be certain
so that they are sure it is not a genuine tenancy agreement. It is likely prosecutors will find this very difficult to prove. 34. There is also no proposed Mens Rea in the basic definition outlined in paragraph 21 of the consultation document. At the meeting held on 7 September at the Ministry of Justice, it was suggested such a Mens Rea might be the owner/ occupier of the property did not consent and the person or persons occupying the premises did not reasonably believe that the owner/occupier of the property consented to them being in the property. We would suggest that such a complex Mens Rea could make it very difficult for a prosecutor to prove their case. 35. We would therefore suggest that should a criminal offence of squatting be created, a simple Actus Reus and Mens Rea is essential for the practical application of such legislation. 36. There is also the possibility that legitimate tenants may fall foul of the definition outlined in paragraph 21 of the consultation document. Such an example would be a tenant sub-letting their private rented property without the knowledge of the landlord. The sub-tenant may pay rent to the named tenant who then pays rent to the landlord. The sub-tenant and the landlord have no legal relationship and the landlord does not know the named tenant has sub-let. Therefore, the sub-tenant is occupying the property without the authority of the rightful owner. Should the landlord then conduct a routine inspection of the property and find the sub-tenant in occupation, the landlord would have no idea whether or not that subtenant is lawfully in occupation or has entered the property as a trespasser. 37. With the above example in mind, there is also the issue of what potential defences (statutory or otherwise) may be applicable to such an offence. However, as this issue is discussed in greater detail in later questions, we do not propose to go into any further detail at this stage in the response. How should the term occupation be defined? Should it cover those who occupy a building for a short period (e.g. a couple of hours)? 38. The NLA would argue the term occupation should be as broad as possible and include those whom occupy a property for any length of time (a couple of hours or much longer). We would suggest that by defining occupation narrowly, significant legal problems could emerge if prosecutors are required to prove how long an alleged squatter has been in the property. This may be very difficult as the property owner might not know how long the alleged squatter has been in the property; neighbours may be reluctant to give evidence for fear of retribution; and in terms of residential property, there is unlikely to be any CCTV footage (or other documentary evidence) of when the alleged squatter entered the property. 39. We would suggest the term occupation should be assessed on a case-by-case basis, allowing the Crown Prosecution Service (CPS), in making the Charging Decision, to exercise common sense in the application of the Public Interest Test. For example, we would suggest
that it would not be in the public interest to prosecute a homeless individual who has used an empty property to seek shelter from harsh weather conditions. However, we would suggest that it is in the public interest to prosecute a group of people who have deliberately broken into a property in order to live there without having to pay any rent. We would argue that defining such nuances in legislation may be very difficult and it would be more appropriate to give CPS prosecutors greater flexibility in applying a common sense approach to individual cases. 40. We would also argue that with a broad definition of occupation placed on the statute books, should it emerge in practical scenarios that a narrower definition is required, the Judiciary would still be able to do so at appellate level through case law. What buildings should be covered by the offence? Should it cover all buildings or only some (e.g. should it cover public and private buildings, outbuildings, abandoned or dilapidated buildings, or buildings that have been empty for a long time)? 41. For the reasons outlined in the previous answer, the NLA would suggest that the broadest possible definition of the term building is appropriate. We would suggest that all public and private, residential and non-residential properties, all Use-Classes and any Sui Generis properties (as defined under the Town and Country Planning Act 1990 and its subsequent Orders) should be included in any definition. 42. Such a course of action may save many legal arguments over what part of a multi-purpose building is being occupied by the alleged squatter. For example, if the definition only includes residential property and an alleged squatter has taken over an entire property which consists of a residential unit (Use Class C3) above a shop (Use Class A1), it is conceivable that such a squatter may claim they were only occupying the retail unit, not the residential unit and are therefore not guilty of the offence. 43. Further, by including all properties in such a definition, it would create a level-playing field and the same safeguards against squatters for all those operating in the real-estate sector. Do you think there should be any exemptions to any new offence of squatting? If so, who should be exempt and why? 44. The NLA agrees with the need to ensure that legitimate tenants who had permission to occupy property were not falsely accused of being squatters outlined at paragraph 25 of the consultation document. Therefore, we do not believe that private rented tenants who refuse to leave the property at the end of a fixed-term Assured Shorthold Tenancy (AST) should be included in the definition of squatting. 45. We also do not believe that permitted occupiers (where the private rented tenant has left the property but a friend or relative has remained in occupation) should be included in the definition of squatting.
46. Therefore, we would argue that an appropriate defence would be the existence of a valid tenancy agreement. However, we would also suggest that the initial evidential burden should be placed on the defence to adduce evidence of a valid tenancy. Precedent for such a course of action exists in relation to the partial defence of loss of control to a murder charge where if evidence is adduced [by the defence] on which, in the opinion of the trial judge, a jury, properly directed, could reasonably conclude that the defence might apply 2. Therefore, whilst the burden of proving the Actus Reus and Mens Rea of the offence would still lie with the prosecution, the evidential burden of adducing the defence of a valid tenancy would lie with the defence. 47. In the event that a criminal offence of squatting is created, we do not believe there is a need to create a counter-balancing offence of knowing or recklessly accusing a legitimate tenant of being a squatter and support the Ministry of Justice s view that such a course of conduct would be caught by the offence of perverting the course of justice as outlined at paragraph 25 of the consultation document. Do you agree that the existing law provides adequate protection against false allegations? 48. This question is slightly ambiguous and therefore we are responding based on whether existing law provides adequate protection for legitimate private tenants against false accusations of squatting by landlords. 49. Therefore, we do agree that existing legislation provides adequate protection against false accusations. As mentioned in paragraph 47 above and supported by paragraph 25 of the consultation document, should a criminal offence of squatting be created, if a landlord knowingly accuses a legitimate tenant of squatting, it is likely that such a landlord would be guilty of perverting the course of justice. 50. Further, when considering the private rented sector, the Protection from Eviction Act 1977 provides protection for tenants who are unlawfully evicted from their property with sanctions on summary conviction to a fine not exceeding level 5 on the Standard Scale ( 5,000) or to imprisonment for a term not exceeding six months or to both; or on conviction on indictment, to a fine or to imprisonment for a term not exceeding two years or to both 3. 51. We would also argue that by virtue of the Housing Act s 1988 and 1996, tenants are protected from eviction where a valid tenancy is deemed to exist. For example, under Section 1 Housing Act 1988, a tenancy is deemed to exist irrespective of whether or not there is a written tenancy agreement provided the tenant occupies the dwelling as his own or principal home. 2 Section 54 (6) Coroners and Justice Act 2009; in force 4 October 2010 3 Section 1 (4) Protection from Eviction Act 1977
52. There are also additional civil penalties contained within Chapter IV (Protection from Eviction) of the Housing Act 1988 4 where a landlord who has unlawfully evicted their tenants is liable to pay damages to the tenant. If not, what other steps could we take to protect legitimate occupiers from malicious allegations? 53. Not applicable. See answer to previous question. What do you think would be the most appropriate maximum penalty for a new squatting offence? Please explain. 54. We would also suggest that before considering maximum penalties, it is important to look at whether squatting should be a summary offence, either way or tried on indictment only. When considering both issues, we would suggest the Ministry of Justice should consider comparable offences. 55. We would suggest one such comparable offence would be the unlawful eviction and harassment of an occupier under Section 1 of the Protection from Eviction Act 1977. This is an either way offence and therefore we would suggest the offence of squatting should be the same. An either way offence would also seem more appropriate as it is conceivable that other offences relating to squatting (criminal damage, arson, drug offences or sexual offences) may also be on the Charge Sheet and therefore, Magistrates could take the view that the whole case should be committed to the Crown Court for trial. 56. The maximum sentences for offences under Section 1 of the Protection from Eviction Act 1977 on summary conviction is a fine not exceeding level 5 on the Standard Scale ( 5,000) or imprisonment for a term not exceeding six months or to both; or on conviction on indictment, to a fine or to imprisonment for a term not exceeding two years or to both. As we suggest this is the most comparable existing offence, we would argue that similar maximum sentences should be imposed for an offence of squatting. 57. However, it is also important to consider whether a fine would be the most appropriate sentence for such an offence on the grounds of ability to pay (as is mentioned at paragraph 26 of the consultation document). From our experience, most squatters resort to squatting because they cannot access mainstream housing and have limited financial means. Therefore, imposing pecuniary penalties may result in those convicted of squatting not having the ability to pay. Further, we do have experience that when deductions are made from benefits (for example, for previous rent arrears) it can result in the tenant not having sufficient remaining benefits to cover their current financial commitments. Therefore, tenants get themselves into rent arrears again and a cycle begins. We would suggest that unless there is clear ability to pay by the convicted squatter, Collection Orders may cause 4 Sections 27-33
more harm than good. Therefore, perhaps Community Orders may be more appropriate sentence for such an offence. In your experience (e.g. as a displaced residential occupier or protected intending occupier or as a law enforcer), how effective is the existing offence of section 7 of the Criminal Law Act 1977? 58. As we have stated previously in this response, the NLA does not have first-hand experience of this. However, from complaints to our Advice Line, a picture emerges that the Police do not render assistance with regard to traditional squatters. Members have been told that unless there are obvious signs of forced entry, it is a civil matter and the Police are unable to help. In most cases there are no signs of forced entry and therefore no investigation of an offence committed under Section 7 Criminal Law Act 1977 is ever undertaken. 59. Similarly, our members tell us that in when squatters are asked to leave the property, they refuse. With no assistance rendered by the Police, this requires the landlord to seek possession through the civil courts which as we have already detailed in this response can take many months and result in thousands of pounds worth of damage, lost rent, mortgage payments, etc. How does the definition of displaced residential occupier and protected intending occupiers work in practice? 60. With no practical experience of using this legislation, the NLA is unable to provide informed comment on this question. We would refer you to our answers to the previous question. If we were to expand section 7 so that it covered squatters who refuse to leave other types of buildings when required to do so by the rightful occupier, what type of buildings and what type of occupiers should be specified? 61. For the reasons stated in response to other questions at paragraphs 38 43 of this response, we believe that if the Ministry of Justice were to expand Section 7, the legislation should have the broadest possible definition of both building and occupier that can then be narrowed by the Judiciary on appeal if felt necessary. If section 6 were amended to exempt additional categories of people from the offence, which categories of people should be exempted? Are there any categories that should not be exempted? 62. This question is slightly ambiguous. We understand it to be asking whether people who are not displaced residential occupiers or protected intending occupiers should be covered by exemptions to this offence.
63. We would suggest that the rightful owner of the property should be exempted. For example, if major renovations were taking place in a property when squatters moved in, the landlord would be neither a displaced residential occupier nor a protected intending occupier. The landlord would have no legal protection if they attempted to take back their property and we would suggest a landlord in such a situation should be exempted from the offence. 64. There is also the situation where the property is tenanted and squatters move in (for example, the tenant goes on holiday, during which squatters move in). In such a situation, it is likely the tenant will contact the landlord and ask him to sort out the problem (i.e. get the squatters out). At which point, whilst the tenant is a displaced residential occupier, the landlord is not and therefore the landlord may be committing an offence if they act on the tenant s behalf. We would suggest that in such a situation, the landlord should be protected under the legislation. 65. We would also suggest that to avoid the problems mentioned in paragraphs 38 43 above, a level-playing field should be created to give residential and non-residential property owners the same rights. Do you know of circumstances where the section 6 has been used was it used to protect a tenant from forcible entry by a landlord or was it used for other reasons, e.g. to stop a violent partner from breaking back into his home? Please describe the circumstances. 66. The NLA does not have any direct experience of instances where a Section 6 notice has been used. We do not have any evidence or know of any individual cases where landlords have used or threatened violence in order to gain access to their properties. 67. However, as mentioned previously in this response legitimate tenants do have existing statutory safeguards under the Protection from Eviction Act 1977 from the type of conduct covered by Section 6 Criminal Law Act 1977. Therefore, it could be argued that section 6 is unnecessary duplication of more effective legislation and if it is having unintended consequences, its repeal would be logical. What barriers (if any) are there to enforcement of the existing offences and how could they be overcome? Please give details. 68. We have already stated in response to a number of the previous questions the barriers experienced by landlords to the enforcement of existing offences and therefore do not wish to duplicate information already provided. 69. However, we do agree with any actions that provide additional support, guidance or training for enforcement agencies (such as the Police) as outlined at paragraph 35 of the consultation document. We believe though, this should be done in conjunction with further action rather than as a stand-alone option.
Are you aware of the Government s new guidance on evicting squatters under existing laws? If so, is it helpful? Do you think the guidance could be improved in any way? 70. We have reviewed the guidance (included as Annex A in the consultation document). It is helpful, concise and easy to understand. It includes all the necessary information to assist those with people who have experienced problems with squatters. 71. However, whilst the guidance is very good, it is unlikely to alleviate the fears (unfounded or otherwise) that property owners have over retribution by the squatters and/or their unintended commission of an offence in exercising their rights. We are therefore of the opinion that further action is needed. If any of the proposals in this document were to be adopted, what impact would this have on your organisation or those whose welfare you promote? 72. The NLA strongly believes the rights of property owners should be placed at the centre of any policy decision. Therefore, whichever proposal is taken forward we would like to see a property owner be able to immediately regain lawful vacant possession of their property upon discovering its occupation by squatters (with the assistance of enforcement agencies such as the Police if necessary). Such a course of action would put the rights of property owners at the centre of the policy and allow for the quick and equitable dispensation of justice. Do respondents who identify themselves as having a protected characteristic or who represent those with protected characteristics think any of the proposals would have a particular impact on people who fall within one of the protected characteristics? If so, why? 73. The NLA is responding on behalf of our almost 20,000 members. We do not identify ourselves as having a protected characteristic. We do not believe the proposals would have an impact on equality legislation. NLA Suggested Response to the Problem of Squatting 74. The NLA does not believe it necessary to criminalise squatting but as mentioned throughout this response, we do believe that a mechanism is necessary whereby a property owner can immediately ask a squatter to leave. If the squatter refuses to leave we believe the Police should be able to require the squatter to leave and remove them from the property if necessary. 75. We would therefore propose the creation of a form of Exclusion Notice. The Police would be able to give the squatters such a Notice, saying they must leave the property immediately and then being able to escort the squatters off the property. This would give the landlord immediate vacant possession.
76. Exclusion Notices could then have similar procedures to Interim Possession Orders, whereby the squatter can apply to set it aside/appeal. Therefore, anyone who had a legitimate complaint about the Exclusion Notice could apply to the Magistrates Court and the appeal would be dealt quickly. 77. Such a Notice would not give the squatters a criminal record and therefore the problems associated with the difficulty in accessing mainstream housing mentioned above would be negated. 78. Further, such a course of action would be cost-effective to implement; would not involve the court system except in appeal cases; and is not administration heavy (it may only require the creation of a new form for the Police to issue). It may not even need primary legislation and could be done by extending existing powers through secondary legislation.