Residential Property. What is the position. Can you proceed

Section 144 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 creates a new offence of squatting in a residential building

The majority of people now believe therefore that if you squat in a residential building, you’re now suddenly at risk of being arrested, prosecuted, and therefore branded a criminal.

What an opportunity for people like me

What many fail to notice is that the law is very clear.

This is the relevant part of the legislation

Subsection (1) of section 144 sets out the elements of the offence. The offence is committed when:
1.a person is in a residential building as a trespasser having entered it as such.

2. The person knows or ought to know that they are a trespasser; and.
3. The person is living in the building or intends to live there for any period.

If you take any time to examine any of the cases being brought up under this particular law you find that points 1, and 2 are really quite easy to prove.

For point 1, your mere presence in a building that you clearly don’t own shows you are a trespasser.

The second section is there to exclude situations where people can enter a building for any number of benign reasons. Look these up, the law has been quite specific. It also excludes people who hold over after a lease has ended and various other scenario’s.

It’s the third point that is important. Every case being brought always hinges on being able to prove that the person is residing at the address concerned. They will collect sleeping bags, cooking utensils, even having a kettle there can be evidence of residence. Even then, they can sometimes struggle to prove their case. There is one case where there were three people charged, and it could only be proven against one of them due to lack of evidence.

So if you take over a residential property, where does this leave you
Parts 1 and 2. This will always apply to you. You enter as a trespasser, and you are very clear that you are a trespasser. No ambiguity there then.

Section 3 is where I believe this law has been written correctly. It is not designed to prevent people taking control of abandoned property in any way. It is simply a quick and easy response to stop people from moving into what is clearly a residential property, getting them out, and prevent them from returning.

You come back from holiday and someone has moved in in your absence. This law covers it, and out they go. Immediately.

And as an added bonus, they can have a substantial fine, and up to six months in jail.

A serious disincentive to most reasonably law abiding people, leaving only those on the fringes of society who probably care little about such things to carry out the occasional act which comes under this particular law.

Check it out. See how many cases have been prosecuted under this legislation. So far it would appear, very few. I suspect that the majority of cases that do occur are simply dealt with there and then. The householder gets their property back immediately, and there is little benefit in taking up court time to take things further. Especially when a suspended sentence and a fine that will never get paid will probably be the result.

Oh, and read the legislation and various cases for yourself. The same theme runs through all of them.

So how does this benefit those who seek to acquire abandoned property I hear you ask.

The key here is that people have the universal perception that squatting is now illegal. Very simple. Except it’s what people appear to believe that is in fact absurdly simplistic as is often the case when the law is concerned. Learning the law from a sound-bite in the Daily Mail is not the best way to do it.

This law does not prevent people from taking adverse possession of a property. The rules regarding this have not changed. Taking over a property that has a residence on it is no different to taking over a piece of abandoned land.

But people now believe that doing so puts them at risk of criminal prosecution.

The result of this, I believe is that properties that have become abandoned for any reason, and which may in the past have been prime targets for squatters, or anyone else wishing to take them over, now continue to remain abandoned. People believe that it’s not worth the risk, so they stay as they are.

This law has created an abandoned property limbo, and one that will not be changing anytime soon.

However…and this is the key point, the 2012 legislation is very specific about using the property to reside, whereas the legislation that covers adverse possession very specifically refers to control. And these can be and are very different concepts.

I believe that the law was framed in this way specifically so it does not clash with the concept of adverse possession. So think about this. You can still take control of a residential property as long as you don’t physically reside in it.

You can even act as an agent, and let the property out to someone else because, as long as they are there in good faith, and unaware of being a trespasser, they will not be committing any offence, even under this new legislation.

This would allow you to take control, and keep the property in use at the same time. You can fulfil the requirements of both parts of the legislation at the same time.

Another element is the definition of what is a residential building. Just because one was in the past, doesn’t mean that it continues to be classed as such. A house that hasn’t been lived in for 20 years would not be classed as such. A cottage that has housed farm animals for years cannot be.

So to be clear on this, you can take control of a residence, but as long as you either, make no use of it at all, or use it for any purpose other than residing in it, you are not breaking the 2012 law.

If you read studies carried out by a number of councils across the UK, they will generally say that abandoned property accounts for up to 5% of the housing stock at any one time. Of that 5%, some of the property can be brought back into use by negotiating with the owners who have often allowed a property to remain empty due to their own circumstances. Councils have an interest in making sure the housing stock is used properly, as well as making sure that our urban environments are maintained and safe. Abandoned properties are on their sights as they can cause a range of problems, which are best resolved where possible.

However, they have also shown that 1% of the housing stock can be found abandoned with no evidence of an actual owner. Just consider this, one in 100 properties is a massive potential pool of property that benefits nobody, and just sits in limbo.

Interestingly, councils are now finding a method of taking control of such properties, and eventually putting them onto the property market for others to improve and make use of. By carrying out some necessary remedial work, clearing a garden to prevent rodents appears to be the favourite, they can legitimately create a charge against the property which then allows them to seize the property and sell this at auction in order to recover their costs.

The fact that the charge can be as little as a few thousand is irrelevant.

If you look at property auctions these kind of properties occasionally come up. You can often tell what they are, there will be clear evidence they have only just been cleared, having been overgrown and unkempt(look at the visual history on Google Earth). They are usually sold still full of whatever property has been left inside, and are even still locked up at the sale. You cannot even get to look inside. They cannot legitimately break in and remove the property inside, so it goes with the sale and become the problem of the new owner. They always go cheaply, and it doesn’t matter, the council only takes a small portion for their charge, and any other legitimate costs. The rest goes into central funds. The only benefit for the council is to re-mediate a situation, and bring a property back into use. This is probably why some are on it, and others will never bother unless they have to.

Suffice to say, you’ll find very little property that falls under this in the south east of England, but a lot more in the north.

So now imagine finding this property before a council has attached a charge to it. The other alternative is to view the council as effectively doing your groundwork for you.

Before they take these steps, they will have exhausted all of their resources attempting to locate an owner.

And they have access to a vast amount of data that you can never see. So if they are taking steps to do this at a property, what an opportunity to jump in first, take possession and eventually claim, knowing that there is virtually no possibility that anyone will every challenge your legitimacy.

You may have to reimburse the council to cover the charge they have made, but as long as they haven’t actually seized the property, you can get there first.

And it’s unlikely that anyone will challenge your legitimacy. The neighbours have probably wanted the property to be sorted out for years, and will be very happy seeing someone doing exactly that.