At the time of writing, it was not a criminal offence for a person to enter a residential building as a trespasser. If however, a residential occupier returns home perhaps after a holiday, to find a trespasser in their home, it becomes a criminal offence for the trespasser if he / she fails to leave on being required do so by the displaced occupier or an individual who is a protected intending occupier of the premises (for example a tenant who has just been given keys to their new home) [section 7 Criminal Law Act 1977]. A constable may arrest a trespasser in this situation so it is always worthy of calling the police if you find a trespasser in your own home.

Where empty property is concerned and there is no displaced occupier (for example a rented property in between lets), likewise it was not a criminal offence for a person to enter the property. No person may use or threaten violence for the purpose of securing entry into any premises if there is someone present at the time opposed to the entry unless they are a displaced occupier as above [section 6 Criminal Law Act 1977]. Therefore, a landlord may not use or threaten violence to get the property back (if someone is opposed to the entry) and instead must obtain a possession order from the court using a special trespasser possession procedure (which is must faster than normal possession proceedings).

Where there are two or more persons trespassing with the common purpose of residing there for any period and reasonable steps have been taken asking them to leave and that any of those persons has caused damage or used threatening, abusive or insulting words or behaviour towards the occupier, a member of his family or an employee or agent of his, or that those persons have between them six or more vehicles on the land, then, a senior police officer may direct those persons, to leave the land and to remove any vehicles or other property. If a trespasser fails to leave (or remove vehicles or property) then the failure to leave is a criminal offence. [section 61 Criminal Justice and Public Order Act 1994].

From 1 September 2012 a further offence of squatting in a residential building is made by section 144 Legal Aid, Sentencing and Punishment of Offenders Act 2012. This time, the offence relates to the entering of the building, rather than the existing position where the offences relate to failing to leave when requested (those existing provisions remain in addition to the new offence).

From 1 September 2012, 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.

In addition, section 17 of the Police and Criminal Evidence Act 1984 will be amended to allow a constable to enter, search and arrest etc. if trespass is suspected. Importantly this will apply to any “one” person whereas prior to this change a senior officer could only ask persons to leave if there were “two or more” trespassing and intending to reside where there was no displaced occupier.

Therefore, from 1 September 2012, if a landlord has an empty property perhaps because of being in-between lets and finds a trespasser has entered the building, that person will have committed a criminal offence and the landlord will be able to contact the police who will have the power to enter and arrest the trespasser. The new offence only applies to residential buildings.

The Ministry of Justice has issued guidance (Offence of Squatting in a Residential Building, Circular 2012/04) and has indicated that the police may wish to liaise with local housing authorities and homelessness services to ensure that appropriate housing advice is made available before taking enforcement action against homeless squatters.