Historically if a property owner or occupier was not able to 'persuade' squatters to leave residential property the property owner or occupier was only able to use one of two legal processes to evict a squatter from residential property:

1. Squatter possession proceedings in the local county court

Proceedings could be commenced as either a straightforward claim for possession or as a claim for possession based upon the Interim Possession Order procedure. The straightforward claim for possession was slow (it could take anything between four and 10 weeks), it was expensive (solicitor fees, court fees, process server fees, counsel brief fee etc) and the property owner or occupier was left to pick up the pieces of a property being occupied by squatters for many weeks including the cost of clearing and cleaning the property and, often, the repair and/or redecoration of the property.

The Interim Possession Order procedure was quicker but had to be commenced within 28 days of the property owner or occupier becoming aware of (or ought to reasonably have become aware of) the squatters occupying the property. It was also expensive as it involved two hearings and two process servers’ fees (to serve the proceedings and later the Interim Possession Order). Furthermore, if possession was obtained following service of the Interim Possession Order the property owner or occupier was not able to do anything with the property until the Interim Possession Order was made final by the court.

2. Arrest by the police

If a squatter was squatting in a person’s home then section 7 of the Criminal Law Act 1977 (which was rewritten by section 43 of the Criminal Justice and Public Order Act 1994) provided that a criminal offence was committed by a trespasser refusing to leave when required to do so by or on behalf of a 'displaced residential occupier' or a 'protected intending occupier'.

The procedure was not an instant solution: it required the occupier or intended occupier to present to the police a statement signed before a Commissioner for Oaths or a Justice of the Peace setting out information required by the 1994 act and to persuade the police to act.

However, on 1 September 2012 new legislation came into force which made squatting in a residential building a criminal offence with squatters facing up to six months in jail and/or up to a £5,000 fine. Section 144 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 provides that a person commits an offence if:

(a) The person is in a residential building as a trespasser having entered 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.

For the purpose of Section 144 a 'building' is defined to include any structure or part of a structure (including a temporary or moveable structure) and a building is 'residential' if it is designated or adapted, before the time of entry, for use as a place to live. An 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).

Section 17 of the Police and Criminal Evidence Act 1984 has also been amended in order to give a (police) constable power to enter and search any premises for the purpose of arresting a person for an offence under section 144.

Is the new legislation effective? The early indications say yes. It was reported in the press last week that a 21-year-old man squatting in a London property had become the first person to be jailed under the new law. Three people were arrested squatting in a flat in Pimlico on Sunday 2 September and were charged and later pleaded guilty to squatting. Westminster Magistrates' Court jailed the 21-year-old young man for 12 weeks. Another squatter was fined £100 and recalled to prison on breach of licence and the third squatter remains to be sentenced at a later date.

A client obtained possession of a flat in Ealing on Monday 4 September 2012 after the police arrested the squatter. The police was only vaguely aware of its new powers and it helped that the client was able to present to the police office copy entries of her title to the flat together with copies of section 144 and section 17.

The main squatting advisory websites are not happy with the new legislation. They accuse the government of bringing in the new law against a background of media myths and not dealing with the underlying problem of lack of affordable housing. However, the good news is that they are now advising against squatting in residential buildings although, as one would perhaps expect, they are looking for opportunities to challenge the new law in court.

Peter Ling, chartered legal executive, Property Litigation Department of Howard Kennedy LLP