Squatters’ rights: Turn the equilibrium in your favour

Squatting often refers to occupation of an empty house (although squatters do occupy commercial premises on an increasingly frequent basis). It is often regarded as the ambit of civil law rather than a criminal matter unless there is evidence of forced entry; this is regarded as criminal damage, thereby affording the police certain powers to remove the occupants.

The earliest cases of squatting can be traced to 1381 when the Forcible Entry Act was passed, although the phenomenon rose following the end of the First and Second World wars when some soldiers were forced to live in empty or derelict properties due to the lack of decent housing. More recently, in 2003 it was estimated that there were around 15,000 squatters in England and Wales. The Empty Homes Agency- an independent campaigning charity, estimates that there are currently more than 750,000 empty houses in England. Today, thousands of people are prepared or are forced to squat- and there are hundreds of thousands of properties which may be available to them.

Landlord Assist, a tenant eviction service, is seeing a significant increase in the number of instructions from landlords to remove squatters in 2009. In recent months, the press has reported on the squatting of a £6m house in Mayfair, a £4.5m house in Hampstead, a £3m mansion in Bristol and an entire island in the Thames at Surbiton. Add to this the fact that this year has already seen cases brought before the courts involving squatters’ rights to land and property (including Lambeth Council being forced to hand over lists of empty properties to a squatter in March) and you can see that the issue of squatters’ rights is never far from the surface in today’s property market. But what rights do squatters actually hold and how can landlords act to prevent loss of ownership to squatters? 

Landowners who are faced with squatters are well within their rights to evict them but unless they are willing to leave voluntarily, court proceedings are required in order to obtain a possession order which then can be legally enforced. Squatters are afforded protection from harassment, and owners who take the law into their own hands could face prosecution under the Protection from Eviction Act.

Until the Land Registration Act 2002 (‘LRA 2002’) was brought into force in October 2003, it was possible for a squatter to acquire possessory title to any land, whether registered or not, at the Land Registry. The Limitation Act 1980 provides that no action shall be brought to recover any land after the expiration of a specified period, which is usually 12 years. “Limitation… extinguishes the right of the true owner to recover the land, so the squatter’s possession becomes impregnable, giving him a title superior to all others.” (‘Buckinghamshire County Council v Moran’ [1990])

In relation to unregistered land, the position has not changed since the LRA 2002 came into force, so a squatter on unregistered land may be able to deprive the landowner of his property if he can show continued possession for the requisite period and during that time:

- He has had actual possession of the land;
- he intended during that period to possess the land to the exclusion of others including the legal owner;
- occupation was not with the landowner’s consent;
- his use of the land was inconsistent with the owner’s present or intended use.

Owners of unregistered land should therefore carry out periodic inspections to check for squatters and should consider voluntary registration at the Land Registry to bring the property within the framework of the LRA 2002 as the LRA 2002 was enacted primarily to promote the concept of ownership through registration at the Land Registry, rather than by paper title or possession.

The Land Registry will notify all those who hold a registered interest in the land such as the registered legal owner and any registered mortgagee. If the registered interested parties consent, do not object or do not reply at all within a given period, the squatter will be registered as the legal owner after a two year delay period, which is designed to allow sufficient time for possession of the land to be recovered from the squatter. It is essential that the owners’ contact details are up to date on the Title Register, so they are made aware of the application.

If the landowner does not consent to the squatter’s application, they should object to the application and either create a formal arrangement with the occupier such as a tenancy so the occupation is therefore by way of consent and no longer adverse possession, or take proceedings to recover possession. If the squatter remains in adverse possession for a further two years then he/she will be entitled to reapply to be registered and that application will be granted whether or not the registered owner objects. If the landowner fails to utilise the two year period, by offering tenancy or pursuing eviction, then the squatter is entitled to become the registered owner.

Some commentators hoped that the Human Rights Act 1998, introduced in October 2003, would serve in some way to protect landowners against claims for adverse possession under Article One , which declares that persons (including corporate bodies) are entitled to the peaceful enjoyment of their possessions and that no-one can be deprived of those possessions except where it can be shown to be in the public interest and to the conditions provided by law.

Two cases on this worked their way through the domestic courts and one went to the European Court of Human Rights, but their verdicts muddied the waters. The introduction of the LRA 2002 clarified the position concerning registered land.

The Limitation Act 1980 still applies to unregistered land, and if the squatter can demonstrate the requisite period of actual possession (usually 12 years), the intention to possess without consent and use inconsistent with the legal owner’s present or intended use, the legal owner’s title is at risk. The law is not incompatible with the Convention since it is in the public interest to time bar stale legal claims.

To protect against loss of ownership, a landowner should consider the following steps:

An application for voluntary first registration to the Land Registry so that the protection and notification provisions of the LRA 2002 apply;
- periodic inspection of the property;
- a check with the Land Registry to ensure that contact details are correct;
- fixing and adequate identification of boundaries to avoid disputes;
- if a squatter is in possession, the grant of a lease or licence so that the squatter is no longer in adverse possession;
court proceedings to obtain a possession order;
- eviction of the squatter pursuant to a judgment for possession.

Whilst the economic downturn has seen an increase in squatting and clearly squatting can cause landowners concern and inconvenience, squatters have few rights against a prudent landowner who can use the law both to evict squatters and generally to prevent loss of ownership.

For more information
Stephen Whittaker, Partner, Property Department, Weightmans LLP, Stephen.whittaker@weightmans.com