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Closing the the door on squatters

publication date: Nov 4, 2009
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SquattersLandlord 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?

Squatting usually refers to occupation of an empty house (although squatters do occupy commercial premises) and mostly squatting falls within the ambit of civil law rather than being regarded as a criminal matter. However, if there is evidence of forced entry then this is regarded as criminal damage, giving 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. Today, the Empty Homes Agency – an independent campaigning charity, estimates that there are more than three quarters of a million empty houses in England.

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 protected 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 on 13 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 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 this was enacted primarily to promote the concept of ownership through registration at the Land Registry, rather than by paper title or possession.

From 13 October 2003, transitional provisions applied to those cases where the limitation period of adverse possession had already ended. For claims arising after 13 October 2003, the squatter is required to apply to the Land Registry for registration as the new proprietor of the land and to supply evidence that he has been in possession on an adverse possession basis for at least 10 years.

On receipt of a squatter’s application, 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, then two years on the squatter will be registered as the legal owner. The two year delay period is designed to allow sufficient time for possession of the land to be recovered from the squatter. Given that the squatter’s application will prompt notification to the registered interested parties that the application has been made, it is essential that the owners’ contact details are up to date on the Title Register.

Unless the landowner is content for the squatter’s application to be accepted by the Land Registry, the landowner should object to the application and either create a formal arrangement with the occupier such as a tenancy, so that the occupation is therefore by way of consent and no longer adverse possession, or take proceedings to recover possession. If the squatter’s application is refused but 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. The purpose of the two year period is to enable the registered owner to evict the squatter and if the landowner fails to utilise the two year period, then the squatter is entitled to become the registered owner.

Following its introduction in October 2003, some commentators hoped that the Human Rights Act 1998 which incorporates the provisions of the European Convention on Human Rights into UK domestic law, would serve in some way to protect landowners against claims for adverse possession under Article 1. This provides 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 worked their way through the domestic courts and one went to the European Court of Human Rights. For a while, these cases and their various judgments muddied the waters. However, with the introduction of the LRA 2002 the position concerning registered land is now clear. Squatters need to apply to the Land Registry to deprive the legal owner of registered land and there is plenty of opportunity for the owner to defeat the squatter’s attempt to acquire ownership.

As for unregistered land, the Limitation Act 1980 still applies and if the squatter can demonstrate the requisite period of actual possession (usually 12 years) together with the intention to possess without consent and use inconsistent with the legal owner’s present or intended use, his 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.

These are the steps to follow to protect against loss of ownership to squatters:

• An application for voluntary fi rst 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 identifi cation 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 it is a potential problem, squatters have few rights against an alert and prudent landowner who can use the law both to evict squatters and prevent loss of ownership.

Stephen Whittaker, Property Dept, Weightmans LLP.