No Home for Squatters’ Rights: Limitations and Legitimated Violence

If you see a house, take it and let the law do its damnedest (Dworkin, 1988: 13)

Remember — trying to stop squat­ting is like stamping on a greasy golf­ball (All Lambeth Squatters, 1974)

As of 1 September 2012, under Section 144 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (“LASPOA”), it be­came il­legal in England and Wales to squat a res­id­en­tial building. According to the Act:

(1) A person com­mits an of­fence if—
(a) the person is in a res­id­en­tial building as a tres­passer having entered it as a tres­passer,
(b) the person knows or ought to know that he or she is a tres­passer, and
(c) the person is living in the building or in­tends to live there for any period.

(2) The of­fence is not com­mitted by a person holding over after the end of a lease or li­cence (even if the person leaves and re-​enters the building).

Despite the fact that dis­pla­cing someone from a building that had ob­vious signs of being their home without the per­mis­sion of the legal owner has been il­legal since the Criminal Law Act 1977, the ne­ces­sity for a du­plicate law just goes to demon­strate the ac­cel­er­ated dei­fic­a­tion and re­ific­a­tion of in­di­vidual prop­erty rights, over the so­cial utility and sharing of re­sources held within the philo­sophy and prac­tice of squat­ting. This re­cent shift in media-​aggravated le­gis­lative change is a defin­itive move fur­ther in fa­vour of the landowner as op­posed to those who have no land, and those who sup­port the re­dis­tri­bu­tion of land.

Anyone catching the London Underground home after work in the past two or three years will have been sub­ject to a neg­ative media cam­paign that af­fected put­ting squat­ting in a bad light. The number of ‘I just went to the shop to buy some milk and came back and my house was squatted’ is near non-​existent, and yet reading cer­tain news­pa­pers, it seemed as though a na­tional epi­demic was taking place, put­ting un­ne­ces­sary fear in the minds of un­as­suming homeowners and loyal readers. This toxic media in­fu­sion has been stated as un­fairly mis­rep­res­ent­ative of squat­ting prac­tices in England and Wales, sup­porting a polit­ical brief that seeks to cas­tigate the age old phe­nomena of usu­capio, an in­her­ited phe­nomena that speaks of the very ba­sics of law it­self. According to the media, there has been an al­leged in­crease in in­stances of fam­ilies re­turning home to their homes only to find un­wanted res­id­ents in­side, and given the ex­tant eco­nomic cir­cum­stances, the num­bers of those losing their homes and squat­ting for housing reasons has in­creased its pre­val­ence and vis­ib­ility, fuel­ling fear levels and polit­ical will to change the law. According to the Housing Minister Grant Shapps on Friday:

No longer will there be so-​called ‘squat­ters rights’. Instead, from next week, we’re tip­ping the scales of justice back in fa­vour of the homeowner and making the law crystal clear: en­tering a prop­erty with the in­ten­tion of squat­ting will be a crim­inal offence.

Back in September 2011, legal aca­demics, so­li­citors and bar­ris­ters in the prac­tice of housing law, wrote a joint letter stating how they were con­cerned how a sig­ni­ficant number of re­cent media re­ports had been ex­ag­ger­ating and mis­rep­res­enting the in­cid­ence of squat­ting in the UK, stating:

[These state­ments are] leg­ally in­cor­rect, as the guid­ance pub­lished by the Department for Communities and Local Government in March [2012] makes clear. We are con­cerned that such re­peated in­ac­curate re­porting of this issue has cre­ated fear for homeowners, con­fu­sion for the po­lice and ill-​informed de­bate among both the public and politi­cians on re­forming the law.

Despite the fact that the change in law af­fects only res­id­en­tial prop­er­ties, this tri­umph of mis-​information will lead to the as­sump­tion of all squat­ting to be a crim­inal and not civil of­fence. According to the Advisory Service for Squatters (ASS), it will be dif­fi­cult for those squat­ters who are using com­mer­cial prop­er­ties to re­main where they are des­pite the fact that they are still per­fectly in their rights to do so, as the public will as­sume that squat­ters’ rights have been out­lawed en­tirely. And yet the so­cial utility of squat­ting will con­tinue to be over­looked, and at a time when 720,000 homes are un­af­ford­able to those on low in­comes in England, 60,000 in Scotland, and 30,000 in Wales due to caps on local housing al­low­ance (Eviction Resistance, 2012), the con­quest of private landowners over the vul­ner­able be­comes ever more tangible.

Squatting as a legal right has not al­ways been a con­tro­ver­sial area of law, its brack­eting under the remit of ad­verse pos­ses­sion saw the syn­chronous emer­gence of prop­erty rights overall. Were it not for the stop valve of ad­verse pos­ses­sion and the taking of land by seizure, it would have been dif­fi­cult to bal­ance com­peting claims to land overall. Time limits on claims to land date back to as early as the Limitation Act 1623, in­tro­du­cing ar­bit­rary time limits on the as­ser­tion of claims. As a result, there de­veloped the novel area of pos­ses­sion by suc­cessful taking. The bringing in of Limitations Acts saw pos­ses­sion based on the ef­fluxion of time as one of the found­a­tional con­cepts of English land law, at once en­closing one’s right to land and at the same time opening out the be­gin­ning of another’s based on a system of re­lativity of title.

Adverse pos­ses­sion re­mains a central paradox within English land law, stat­utory lim­it­a­tion as that which presses the re­lativity of title to its ex­tremity (Gray and Gray, 2011: 1159). Seizure of land is there­fore the basis of in­di­vidual prop­erty rights, and the claim to an un­der­standing of own­er­ship. The mixing of la­bour with the land and the cur­tail­ment of the true owner’s rights through aban­don­ment and misuse is a very Lockean pro­viso, and given the fun­da­mental role of ad­verse pos­ses­sion and squat­ting (as the con­trol of land) as shaping prop­erty rights overall, le­gis­lators will do well to con­sider what the re­moval of this doc­trine means to the strength of rights to prop­erty in sum. At the same time, the so­cial utility to squat­ting is lost with these swift, un­demo­cratic changes to the law and mis­rep­res­ent­a­tions of squat­ting on the ground.

Since the 1970s and 1980, and in the lead up to 2011, there has been an en­croaching shift to­wards the re­moval of squat­ters’ rights from UK law. The Criminal Justice Act 1994 made some sub­stan­tial changes to the law re­lating to squat­ting, bringing in ‘in­terim pos­ses­sion or­ders’ on be­half of the owner and giving squat­ters a con­sid­er­ably re­duced amount of time to re­main and thus a re­duced ver­sion of squat­ters’ rights. The then Home Secretary and mind be­hind the Act, Michael Howard, said: “There can be no ex­cuse for seizing someone else’s prop­erty for how­ever short a time… ”, and thus meas­ures in the Criminal Justice Bill were then de­signed to deal a great de­terrence to squatters.

The Land Registration Act 2002 fun­da­ment­ally altered the law of ad­verse pos­ses­sion, whereby after ten years of phys­ical pos­ses­sion, a squatter has to apply to the Land Registry to have their title re­cog­nised as owner, ren­dering a system of title by re­gis­tra­tion (and in the case of the squatter, title by ap­plic­a­tion) as op­posed to one of re­gis­tra­tion by title. Sections 96 to 98 and Schedule 6 give the ‘paper owner’ the right to be no­ti­fied that of an in­stance of ad­verse pos­ses­sion and as a result, re­cover possession. This ul­ti­mately means that the oc­cur­rence of a squatter ad­versely pos­sessing title to land they have been oc­cupying for years will be­come a thing of the past.

It seems as though the law does not learn from the squat­ters and the causes they rep­resent, the au­thor­ities em­bedded in a global system of prop­erty transfer and ap­pro­pri­ation that be­clouds both politics of the right, and so too of the left. The drive to curb any al­tern­ative and self-​managed use of space, through the death of squat­ting laws, is just an­other tech­no­logy of en­closure, a mani­fest­a­tion of market-​driven eco­nomies of prop­erty and the prop­erty of the economy.

As in any other le­gis­lative shift, there is al­ways the un­der­lying force of state vi­ol­ence. Any squatter will un­der­stand the vi­olent force of prop­erty rights, either by being sub­ject to the pain and wrenching of evic­tion, or just by en­tering an empty space and sur­veying the de­struc­tion of the in­ternals of a building. Part of the de­terrent that coun­cils use to stop squat­ters en­tering is to des­troy any means of basic amen­ities that those looking for an emp­tied space may wish to use. This in­cludes ‘gut­ting’, the smashing up of all the plumbing, the de­struc­tion of stair cases ren­dering floors other than the ground floor inaccessible.

According to Andrew Corr, as he sum­mar­ises the anarchist-​tinged lit­er­ature on prop­erty, land own­er­ship “… ex­ists when an in­di­vidual has the vi­olent forces ne­ces­sary to evict or subdue the in­hab­it­ants of a given piece of land and claims ‘own­er­ship’” (Corr, 1999: 12 – 15). This is a pro­cess that has taken place again and again, along dif­ferent stratas, within dif­ferent jur­is­dic­tions, at al­ternate times and spaces, whereby such a rep­lic­a­tion, “… will re­main that way inas­much as the system and ideo­logy of spa­tial prop­erty is the sa­lient inter-​human re­la­tion to land” (Corr, 1999: 12 – 15). What took ef­fect from the start of September 1st is merely an­other ex­ample of this age old pro­cess of law and res­ist­ance that re­oc­curs and im­it­ates it­self across the globe. Nicholas Blomley propounds:

Space gets pro­duced, in­voked, pul­ver­ized, marked, and dif­fer­en­ti­ated through prac­tical and dis­cursive forms of legal vi­ol­ence. And property’s vi­ol­ence is it­self in­stan­ti­ated and le­git­im­ized, yet also com­plic­ated and con­tra­dicted in and through such spaces (Blomley, 2003: 135).

And yet, whether or not squat­ting is legal or il­legal, space will still be pro­duced and re-​used by those who squat, whether il­legal or oth­er­wise. Given the use of private law in order to curb the stu­dent protests of 2010 and 2011 and the re­moval of the ‘squat­ters out­side St Paul’s’, law will al­ways at­tempt to cat­egorise, and res­ist­ance will con­tinue to reset the bound­aries. What will be of in­terest over the coming months is ex­actly what ef­fect clause 144 of LASPOA will have on squat­ting in England and Wales. As the ‘All Lambeth Squatters’ once said: “Remember — trying to stop squat­ting is like stamping on a greasy golf­ball” (All Lambeth Squatters, 1974).

Lucy Finchett-​Maddock is Lecturer in Law at the University of Exeter

References

Blomley, N. (2003), “Law, Property, and the Spaces of Violence: The Frontier, the Survey, and the Grid”, 93, Annals of the Association of American Geographers, 121 – 141

Corr, A. (1999), “No Trespassing: Squatting, Rent Strikes, and Land Struggles Worldwide, London, Southend Press

Dworkin, G. (1988), “The Theory and Practice of Autonomy”, Cambridge, Cambridge University Press

Eviction Resistance, found at http://​evic​tion​res​ist​ance​.blog​spot​.co​.uk/.

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