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Comment: Protecting your premises against commercial squatters

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Squatting became a criminal act in relation to residential property on 1 September 2012, but squatting in commercial property remains a civil issue up until the point where the court orders have not been complied with.

If a person enters a residential building as a trespasser, they know or ought to know that they are a trespasser. If they live in the building or intend to live there for any period of time, whether or not the squatting started before 1 September, they will be committing a criminal offence. That offence carries the penalty of up to six months in prison and a maximum £5,000 fine, or both.

The Government decided not to criminalise squatting in commercial, and other non-residential premises, following a consultation on the topic last year, where it felt that criminalisation in respect of residential property only represented a “balanced compromise”. There are indications in Government Ministers’ comments, though, that this will be a testing ground for wider application.

What effect will this have on retail property?

The combined factors of empty retail units increasing on the high street and the theoretical ability for residential property owners to now involve the police, which could result in arrest and prompt instant removal of the squatters, could mean that empty retail property will now become a greater target for squatters. A retail property owner can only rely on the civil possession procedure, which is more time consuming and costly.

The long saga recently witnessed when Sun Street Properties took action to remove Occupy London protesters from a City development, showed how difficult it can be to successfully use the civil procedure when the squatters are aware of their legal rights. Will ‘savvy squatters’ now look to empty retail property in the knowledge that they can potentially stay longer?

It remains to be seen what stance the police will take in relation to the new offence. Whilst many homeowners may hope that the widely publicised nature of the new offence will mean the police provide substantial resource towards squatting incidents, they have not always seen evicting squatters as their highest priority. A more zealous approach from the police will add to the likelihood of retail property being targeted, whilst a reserved approach will probably result in little change in squatters’ attitude.

What can owners of empty retail property do?

If squatters do obtain entry to your premises, then you can bring a civil claim for a possession order. The court will list the case for hearing, but must allow a minimum of two days for service on the squatter defendant. If a possession order is granted, it will specify a date for the squatter to leave. If the squatter does not leave, then a warrant of possession can be applied for from the court, which you will need to enforce using a bailiff. Of course a squatter can apply to set the possession order aside, and delay matters considerably.

Alternatively, you can apply for an interim possession order. This can only be invoked within 28 days of knowing, or from when you ought to have known, that the squatter has gone into occupation, and, where you are only claiming possession and not any other remedy, such as damages. The court will list the case for hearing, but must allow three days for service on the squatter defendant. If the interim possession order is granted, then if the squatter does not leave within 24 hours, or leaves and returns within a year, the squatter is committing a criminal offence and the police have the ability to arrest and remove the squatter. This remedy has its disadvantages, however, as it is only an interim remedy over which the court can exercise discretion in any particular case.

As is often the case, prevention is the better option, and it goes without saying that implementing a proactive security plan at your property is vital. A risk assessment, to consider not only exposure to squatters, but also fire hazards and exposure to public liability claims, is also to be advised. Insurers should be informed and will likely require a minimum of weekly inspections.

What next?

A campaign has already begun in Kent, where empty pubs have often been targeted by squatters, to extend the offence to commercial property. If nothing else, some more clarity around mixed use properties is called for. It remains to be seen, however, whether the police will have the resources and/or will to treat squatting offences as top priority, thus potentially driving squatters from residential into empty retail property.

Published on Monday 17 September by Editorial Assistant

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