Are Government proposals to criminalise residential squatting a concern for Conveyancing Solicitors?
Squatting is not something that usually affects Conveyancing Solicitors, except in the context of title being claimed by adverse possession. However, recently reports of squatters taking possession of a house which was up for sale give some cause for concern.
The property was vacant, and the squatters claimed that they had a tenancy agreement apparently granted by someone who didn't own the house. Clearly it would be difficult to proceed with any sale until action had been taken to remove the squatters.
The nightmare scenario for clients and Conveyancing Solicitors would surely be when squatters move in between exchange and completion. If this happens, could the buyer be forced to complete if the seller was unable to give vacant possession?
Section 73 of the Criminal Justice and Public Order Act 1994 makes it a criminal offence for a trespasser to fail to leave residential premises after having been required to do so by a displaced residential occupier or a protected intending occupier. The latter would include someone who has bought the property or is entitled to occupy it under a lease or licence.
If the seller was not resident ( e.g. an executor) then they would not appear to have been displaced and so would be unable to require squatters to leave for the purposes of this section. They would therefore have to take civil eviction action.
It is unlikely that most Buyers or their Conveyancing Solicitors would agree to complete until vacant possession was obtained. If vacant possession cannot be given, then a buyer presumably cannot be compelled to complete.
The police seem to be reluctant to take action under section 74, no doubt because they are reluctant to be drawn into what they would see as a civil property dispute. While some buyers might be willing to proceed with a purchase if they could then claim to be a protected intending occupier, most would surely be reluctant to rely on this to obtain early occupation.
Will government proposals to criminalise trespassing in residential property help in this situation? If the proposed addition to the Legal Aid, Sentencing and Punishment of Offenders Bill are passed, it will become an offence for a trespasser to live in a residential building. That would appear to assist non-resident sellers, but will the police show any more enthusiasm to enforce this law?
Until the new proposals come into effect and it becomes clearer what effect they will have, Property Lawyers would do well to advise clients to take steps to ensure that squatters are unable to gain access to empty homes.
Will criminalising squatters affect claims for possessory title?
Cases of people obtaining possessory title to houses are perhaps rare. But if the new law comes into effect, what will be the position of anyone who is in adverse possession of a house?
If someone has obtained possessory title to a house by adverse possession, or is in a position to claim such title, are they a trespasser? And if so, will they continue to be committing a criminal offence? The proposed law will apply not only to a trespasser but to anyone claiming title from a trespasser, and it will be irrelevant whether the person entered the building as a trespasser before or after the commencement of the proposed law.
So, if Conveyancing Solicitors find themselves acting for the buyer of a house with possessory title, perhaps they should take advice from a criminal lawyer before proceeding too far.