First published 4 September at http://www.criticallegalthinking.com.
“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, it became illegal in England and Wales to squat a residential building. According to the act:
“Offence of squatting in a residential building
(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 dear 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  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 effects 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 be 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, he states that 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 1 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 take re-set the boundaries. What will be of interest over the coming months is exactly what effect clause 144 of LASPB 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).
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://evictionresistance.blogspot.co.uk/.