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Squatting, clamping and beds in sheds

House key iStock 000004543619XSmall 146x219Steven Eccles and Kate O’Brien look at the implications for local authorities of three recent developments: the new offence of squatting in residential property; the ban on the clamping and removal of vehicles parked on private land; and dealing with rogue landlords.

Squatting in a residential building

A new criminal offence of “squatting in a residential building” came into force on 1 September 2012, which makes it easier, cheaper and quicker to remove squatters from residential properties. In the two months since the offence was introduced, significant increases in squatting in commercial properties have been reported as squatters seek to avoid prosecutions. So what is the new offence and how will it affect local authorities?

The offence

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The offence is committed if:

  • a person enters and remains in a residential building as a trespasser;
  • he/she knows or ought to know that they are trespassing; and
  • he/she is living in the building or intends to live in it.

“Residential building’ is defined as a structure which has been designed or adapted for use as a place to live.

Where an offence is committed, the police have the power to enter and search premises for the purposes of arresting the trespasser(s). Prosecutions will be dealt with in the Magistrates’ Court and the sanctions available are a maximum of six months’ imprisonment, a fine of up to £5,000, or both.

The new law has been welcomed by those managing residential property. It will increase the burden on the police to remove squatters, although the usual restrictions on resources may limit the effectiveness of the process.

The new law will not apply to every act of trespass in a residential building, and there are exceptions where the offence will not be committed. The offence will not be committed where:

  • the squatter has not entered and remained in the building as a trespasser, e.g. if the trespasser was initially allowed into occupation with permission of the owner;
  • a lawful tenant or licensee remains in occupation and ‘holds over’ after the expiry of a lease or licence;
  • the squatter had no reason to believe that they were trespassing, e.g. if they were duped by a bogus landlord or letting agent; or the trespasser has no intention of living in the property for any period of time. For example, someone entering onto a property owner’s front hall or porch to deliver junk mail would not commit an offence.

The new offence is clearly a deterrent. However, resourceful squatters will have considered the best way around the new offence by moving from residential premises to commercial properties.

Many well informed squatters moved out of residential properties before 1 September, having found commercial premises to use as an alternative. This is of particular note to local authorities as any premises which are not owned for the purpose of offering residential accommodation will be classed as commercial and may now be targeted by squatters.

If one of the exceptions above applies or if the property squatted is commercial, property owners will need to fall back on traditional methods of recovering possession. In the majority of cases, this requires an application to the county court for a possession order which is subsequently enforced by the bailiffs carrying out an eviction.

Security of commercial properties must therefore be taken very seriously, particularly if the property is derelict or out of everyday use. Authorities owning vulnerable property should review their security arrangements and consider whether they need to be bolstered.

If a non-residential property is squatted, swift and decisive action should be taken to remove the trespasser(s) and the property should be re-secured as soon as the squatters have been removed. Even in situations where residential buildings are squatted, it is possible that the police will lack the resources to be able to assist.

Car clamping on private land – a thing of the past

The Protection of Freedoms Act 2012 was passed in order to return ‘freedoms’ to the public that the Government believed had been eroded through the implementation of other legislation. It deals with a wide range of issues but in relation to parking, it bans the clamping and removal of vehicles parked on private land. The ban took effect from 1 October2012.

The clamping ban applies on all private land in England and Wales unless there is some other ‘lawful authority’ in place to permit clamping and/or removal of vehicles. The ban includes private land belonging to local authorities but provides ‘lawful authority’ for the management of local authority run car parks.

‘Lawful authority’ exists in cases where specific legislation is in force which allows for vehicles to be immobilised or removed. Local authorities may be able to establish ‘lawful authority’ through Acts of Parliament and local byelaws; simply being a local authority will not in itself grant ‘lawful authority’.

In order to create ‘lawful authority’, a public body with the ability to create local regulations and bylaws would need to either create a Parking Order or create byelaws that enable the enforcement of parking by vehicles on that land and include provisions for clamping or removal.

Anyone wishing to have a vehicle removed from private land but lacking ‘lawful authority’ to do so must contact the relevant authorities to have it removed. This will usually be either the police service or the local authority who may decide to arrange for the vehicle to be removed. The current regulations made under s.99 of the Road Traffic Regulations Act 1984 give authorities the power (not a duty) to remove vehicles in the circumstances described in that section. The effect of recent amendments to this section will be to enable regulations to be made which confer further powers on authorities to remove vehicles that are illegally, dangerously or obstructively parked on any land.

This is likely to mean that councils will see an increase in requests from private land owners to have vehicles removed. Local authorities can also remove vehicles which they believe to have been abandoned on open land.

If a private landowner continues to clamp, tow or otherwise immobilise a vehicle without ‘lawful authority’ now that the Act is effective, an offence under the Protection of Freedoms Act 2012 will be committed and if convicted, the perpetrator will be liable for a fine.

Dealing with rogue landlords - the end of ‘beds in sheds’?

New DCLG guidance was issued on 31 August 2012 to help local authorities deal with rogue landlords. The guidance addresses the social problem of rogue landlords who target vulnerable tenants, placing them in unsafe or overcrowded accommodation, or even in converted outbuildings or vacant commercial premises. This behaviour can have a huge impact on neighbourhoods increasing refuse, noise and in some cases, anti- social behaviour. It also places pressure on local services.

Particular concern is highlighted in relation to illegal immigrants who are being forced into substandard and potentially unsafe accommodation by unscrupulous private landlords. So serious is the problem that the Minister for Housing has awarded £1.8m to the nine local authorities who have the biggest problem with ‘beds in sheds’.

In outline, the guidance recommends that local authorities take swift and decisive action to stop rogue landlords using unsuitable accommodation to house tenants. Authorities are also urged to prosecute landlords who persistently let substandard or unsafe property. Publicity of such cases is encouraged to deter others from engaging in this behaviour.

Annex A advises local authorities on their obligations and powers when dealing with rogue landlords. These include:

  • action under the Housing Act 2004 where there is concern about the quality of the accommodation provided. Authorities have a duty to take enforcement action to secure necessary improvements where Category1 (serious) hazards are present, and have the discretion to intervene where Category 2 hazards exist. In these circumstances, authorities should consider issuing Prohibition or Demolition Orders under the Act. The guidance also gives helpful information for preparing an effective case for prosecution;
  • where outbuildings are used as separate residential accommodation in breach of planning controls, authorities should take appropriate enforcement action under the planning legislation, e.g. issuing enforcement notices which could prohibit a building’s use and in some circumstances require demolition;
  • authorities have the power to enter land for obtaining the information required for housing and planning enforcement purposes, and can enter any building used as a dwelling house on 24 hours’ notice;
  • if authorities are concerned about the management or condition of Houses in Multiple Occupation they can consider Additional Houses in Multiple Occupation Licensing Schemes. If the authority has wider concerns about privately rented housing in their area, they can consider selective licensing schemes;
  • if authorities are concerned about the construction of outbuildings in a   neighbourhood with an acute local problem, it might be possible to make an Article 4 Direction withdrawing permitted development rights in certain circumstances;
  • authorities could also consider taking action under the Proceeds of Crime Act 2002 and seeking Rent Repayment Orders after prosecuting landlords. Separately, under the Housing Act 2004, an authority may recover rents paid as housing benefit where a licensable property has not been licensed.

Dealing with Rogue Landlords is a helpful resource to local authorities facing these types of issues, and should be the first port of call if you are facing any difficulties with private landlords. The guidance is available on the DCLG website.

Steven Eccles is a Partner and Kate O’Brien is a Solicitor in the Property Dispute Resolution team at Bevan Brittan. Steven can be be contacted on 0870 194 8933 or by This email address is being protected from spambots. You need JavaScript enabled to view it.. Kate can be contacted on 0870 194 1304.

 

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