Only some trespassers prosecuted

Tucked away in Section 144 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, which received Royal Assent on 1 May, is the new criminal offence of squatting.

This arrestable offence is punishable by up to a year in prison or by a fine of up to £5,000 if the offender knowingly enters into a residential building as a trespasser and intends to live there. The offence does not ­extend to tenants or licensees who overstay their welcome or to ­non-residential properties.

This criminal offence is the first - and so far only - reform arising from the Government’s consultation on the ’Options for Dealing with Squatters’, the formal response to which was published by the Ministry of ­Justice on 26 October 2011. It comes on the back of a media campaign ­focusing on one or two extreme cases of houses being squatted while their occupants are away for the weekend, or, in one case, out at the opera.

The creation of this criminal ­offence has courted controversy for both going too far and not far enough. Homeless charities argue that it unfairly targets the homeless. Commercial landowners complain that it does nothing to deal with the high cost and slow speed of ­evicting squatters using existing remedies.

It is certainly a valid argument to say that we do not need a new criminal offence. There is already a sanction against residential squatting under Section 7 of the Criminal Law Act 1977, which makes it a criminal offence for a person to refuse to leave a property if they have been asked to do so by a displaced residential occupier or intended occupier. What this new offence does is shift the burden of another layer of enforcement on to the already stretched public purse.

Moreover, the new offence is of limited value as it targets a very narrow group of squatters - those occupying residential premises. It may help deter mansion sitters in Bristol and Hampstead, and potentially ­provide a quick fix to remove such occupiers; however, it overlooks the fact that squatters are equally a problem for commercial property owners.

In fact, it is the knock-on effect of confining the new rules to residential premises that is most concerning for commercial property owners. The well-informed squatter may simply target commercial premises and land in future. This will accentuate the problem already faced by commercial landowners, namely that possession claims are more often than not slow and expensive.

Effective enforcement of squatting for commercial landlords remains a cumbersome patchwork of civil and criminal remedies that is ripe for streamlining, but this is something the Government’s review has so far failed to address.

No date is yet fixed for the new ­offence to come into force, although it is expected to be during 2012. In the meantime the Ministry of Justice is working on a draft implementation plan and will then consult with interested groups such as government, local communities and charities.

It will be interesting to see if the commercial sector is successful in lobbying for equivalent powers. If not, one cannot help but feel this is a real missed opportunity.