Squatters and trespassers in a rental property

Why it matters

Unlawful occupation by squatters or trespassers can result in significant financial losses for landlords, including lost rent, property damage, and substantial legal costs for removal. It can also cause lengthy delays in re-letting the property, impacting cash flow and potentially jeopardising mortgage payments. Failure to follow correct legal procedures can lead to landlords themselves facing criminal charges or civil claims, further escalating costs and reputational damage.

Legal requirements

• In England and Wales, squatting in a residential building is a criminal offence under the Legal Aid, Sentencing and Punishment of Offenders Act 2012.
• Landlords must not attempt to use force or intimidation to remove squatters or trespassers.
• For residential squatters, police should be contacted as they have powers to arrest and remove individuals.
• If the police do not act, or for trespassers in non-residential buildings, landlords must seek a possession order from the court.
• An Interim Possession Order (IPO) can be sought for immediate removal in certain circumstances, followed by a full possession order.
• For a full possession order, a claim form and particulars of claim must be filed with the court.
• A possession order must be obtained from the court before bailiffs can be instructed to remove occupants.
• Landlords must differentiate between squatters and former tenants who overstay, as different legal routes apply.
• It is a criminal offence to allow unauthorised individuals to occupy a property, which can be relevant to Right to Rent checks.
• Landlords must secure the property against further unlawful entry once possession is regained.

Common mistakes

• Attempting to physically remove squatters or trespassers, which could lead to charges of assault or unlawful eviction.
• Changing locks while occupants are inside, potentially trapping them or being seen as an illegal eviction attempt.
• Cutting off utilities to the property, which is illegal and could make the landlord liable for damages.
• Failing to report criminal squatting to the police promptly, delaying their intervention.
• Confusing a squatter with a former tenant who has overstayed, leading to incorrect legal procedures.
• Not gathering sufficient evidence, such as proof of ownership and the unlawful nature of occupation, for court proceedings.
• Failing to properly secure the property after regaining possession, inviting further occupation.
• Underestimating the time and cost involved in legal possession proceedings.

Practical guidance

• Upon discovering unlawful occupation, immediately gather evidence such as photos, videos, and witness statements.
• For residential properties in England and Wales, contact the police on 999 if squatters are present, providing proof of ownership.
• If police intervention is not possible or for non-residential premises, seek legal advice from a property solicitor without delay.
• Apply to the county court for a possession order, using the appropriate claim form for trespassers.
• Consider applying for an Interim Possession Order if seeking immediate possession and meeting specific criteria.
• Attend all court hearings and provide all requested documentation to support your claim.
• Once a possession order is granted, instruct county court bailiffs to enforce the order; never attempt enforcement yourself.
• After regaining possession, thoroughly secure the property, including changing all locks and reinforcing entry points.
• Ensure all necessary repairs are carried out to prevent future vulnerabilities and comply with safety standards.
• If the situation involves a former tenant, refer to guidance on "Dealing with abandonment of a rented property" and pursue standard possession proceedings.

Understanding Squatters and Trespassers

It is crucial for landlords to distinguish between a squatter, a trespasser, and a former tenant who has overstayed their tenancy. A squatter, in the context of residential property in England and Wales, is someone who enters and lives in a residential building as a trespasser, knowing or believing they are a trespasser. This is a criminal offence. Trespassers occupy land or property without permission, but the act of simply trespassing on land is generally a civil matter, not a criminal one, unless associated with specific aggravating factors or intent. A former tenant, however, previously had a legal right to occupy under a tenancy agreement. If they refuse to leave after their tenancy has ended, they are technically a 'tenant at sufferance' or a 'person holding over', and specific possession procedures for tenants must be followed, not those for squatters. Attempting to treat a former tenant as a squatter could lead to charges of unlawful eviction.

Legal Framework for Squatters in England and Wales

In England and Wales, the Legal Aid, Sentencing and Punishment of Offenders Act 2012 made squatting in a residential building a specific criminal offence. This means that if someone is squatting in a residential property, the landlord should contact the police immediately. The police have powers to arrest and remove individuals suspected of this offence. Landlords must provide evidence of ownership of the property. If the police determine that the occupation is indeed criminal squatting, they can take action. However, police may be reluctant to get involved if there is any ambiguity over whether a tenancy ever existed, or if they perceive it as a civil rather than criminal matter. In such cases, or for trespassers in non-residential properties, landlords will need to pursue civil possession proceedings through the courts.

Civil Possession Proceedings for Trespassers

When police intervention is not applicable or successful, landlords must seek a civil possession order from the county court. This involves filing a claim for possession against 'persons unknown' or named individuals if identifiable. The court process typically involves issuing a claim form and particulars of claim, serving these documents on the trespassers, and attending a court hearing. The court will then determine if a possession order should be granted. In some urgent cases, an Interim Possession Order (IPO) can be applied for, which can lead to a quicker removal but requires the landlord to apply for a full possession order afterwards. Once a possession order is obtained, it must be enforced by county court bailiffs; landlords cannot enforce it themselves. Engaging an experienced solicitor is highly recommended due to the complexities of court procedures.

Scotland's Approach to Unlawful Occupation

In Scotland, the law regarding unlawful occupation differs from England and Wales. There is no specific criminal offence of residential squatting akin to the 2012 Act. Instead, trespass in Scotland is primarily a civil matter. If a property is unlawfully occupied, a landlord typically needs to raise an action for recovery of possession in the Sheriff Court. This process can be similar to standard eviction proceedings for tenants, but tailored for trespassers who have no legal right to be there. An Interim Order for Removal can be sought in urgent circumstances. Self-help evictions are strictly prohibited, and landlords must obtain a court order before instructing Sheriff Officers to remove occupants. Scottish landlords should seek specialist legal advice to ensure compliance with specific Scottish legal procedures and avoid potential penalties for unlawful eviction.

Wales and Northern Ireland: Key Differences

In Wales, the law on residential squatting mirrors that of England, meaning squatting in a residential building is a criminal offence, and police powers apply. The Renting Homes (Wales) Act 2016 primarily governs occupation contracts, but trespass and squatting fall under broader UK legislation. Landlords in Wales should follow similar procedures to those in England regarding police involvement and civil possession claims. In Northern Ireland, similar to Scotland, there is no specific criminal offence of residential squatting. Trespass is largely a civil matter. Landlords in Northern Ireland must apply to the county court for a possession order to remove trespassers. This process involves issuing civil proceedings and having the order enforced by the Enforcement of Judgments Office. As with other devolved nations, legal advice specific to Northern Ireland is essential to navigate the distinct legal framework.

Preventing Unlawful Occupation

Prevention is always better than cure. Landlords should take proactive steps to secure vacant properties to deter squatters and trespassers. This includes ensuring all windows and doors are securely locked and reinforced, considering boarding up ground floor windows, and installing alarm systems or CCTV. Regular inspections of vacant properties can help identify and address early signs of unlawful entry. For properties previously occupied, ensuring utility disconnections are properly managed and mail is redirected can prevent 'proof of residency' being established. If a property is vacant for an extended period, considering professional property guardianship schemes can provide a secure and legal form of occupation, offering a deterrent against squatters while potentially generating some income. Furthermore, landlords must ensure their Right to Rent checks are robust to avoid accidentally granting tenancies to individuals without legal right to reside in the UK, as this can lead to different but equally challenging issues.