Unlocking doors: demystifying squatting

Perhaps because of the absence of any squatting movement, there is a public perception that all squatting is illegal in Scotland. In contrast to England, which experienced a vibrant mass movement in the 1970s of more than 50,000 people squatting, the most recent squatting movement in Scotland involved homeless Second World War veterans occupying abandoned army properties (Wates and Wolmar, Squatting: The Real Story, London: Bay Leaf Books (1980), 230). By late 1946 the movement had faded, thanks to the Government’s willingness to rehouse the squatters. More recently, however, in the face of economic austerity, occupations have taken place of empty public buildings, such as Govanhill Baths, Glasgow, in March 2001. This article reviews the main areas of Scots law relating to squatting, in both a criminal and civil context.

A. Criminal liability

Under s 68 of the Criminal Justice And Public Order Act 1994, any squatting which is intended to intimidate, obstruct or disrupt lawful activity carried out on that or adjoining land would constitute the offence of aggravated trespass – for detailed treatment see chapter 3 of the Protest Handbook.

The only other criminal law against squatting is the Trespass (Scotland) Act 1865. The Act was passed in the wake of the turbulent Highland Clearances, when Scottish lairds brutally evicted thousands of labourers and their families, in order to use their lands as sheep farms. Many peasant and Traveller families became homeless, leading to an increase in nomadic people in Scotland. The Act was intended to dissuade these displaced people from returning, and to keep certain Scottish clans, such as the MacPhees, off their native land (Christie, “Access or excess?”, Journal, May 2007, 48). It was referred to by Rankine, Landownership, 132, as “passed for the purpose chiefly of preventing strolling tinkers, gipsies, and others, from squatting without permission on private property or private roads”.

The offences are in s 3: “Every person who lodges in any premises, or occupies or encamps on any land, being private property, without the consent and permission of the owner or legal occupier of such premises or land, and every person who encamps or lights a fire on or near any... road or enclosed or cultivated land, or in or near any plantation, without the consent and permission of the owner or legal occupier of such road, land, or plantation... shall be guilty of an offence punishable as herein-after provided.”

“Private property”

Bankton and Erskine, drawing on Roman law, viewed Crown – and therefore state – properties as public. They treated private property as excluding properties “exempted from commerce” – res universitatis, i.e. properties of chartered communities or corporations, such as hospitals and market places. Church property was likewise excluded. Note that these institutional writings date from when corporations were created by royal charter – prior to the Joint Stock Companies Act 1844 – for public or state-controlled purposes. Private profiteering took on other forms, such as partnerships or unincorporated associations. Property owned by such enterprises was classed by the institutional writers as private property (Erskine, Institute (1785), II i 7-8; Bankton, Institute (1751), I iii 7, 11).

The approach of the institutional writers seems to have focused not only on the titleholder’s identity, but whether the property is used or held on trust for public uses (Rankine, 92; Bell, Principles (1899), Book II, 289).

If such an approach is adopted, the properties of many private bodies which operate public services and receive state funds, such as housing associations and Network Rail, would fall outside the Act.

Occupying and encamping on land

Section 3 creates an offence of occupying or encamping on any land being private property. A purposive interpretation of “encamping” would include any form of living in temporary structures on the land, and would probably encompass vehicles such as caravans, widely used by Rankine’s “strolling tinkers, gipsies, and others”. If this construction is correct, then following Royal College of Nursing of the UK v DHSS [1981] 2 WLR 279, interpretative allowances would be made for scientific advances, thereby bringing modern motor vehicles used by Travellers within the Act.

Lodging in premises

By s 2 of the Act, “‘Premises’ shall mean and include any house, barn, stable, shed, loft, granary, outhouse, garden, stackyard, court, close, or inclosed space.”

The words “shall mean and include” suggest that the list of properties provided is illustrative rather than exhaustive. However, it is notable that the properties listed are buildings which might be found in a rural residential setting in Scotland at the time, these being most likely to be squatted by peasants attempting to return home after the Clearances.

It could therefore be argued that a purposive reading, bearing in mind the intention to prevent evicted peasants from returning to their homes, would mean “premises” could only include properties of that same genus. While this appears to contradict Henderson v Chief Constable, Fife Police 1988 SLT 361, where the Act was applied to a hospital, that case was an appeal by stated case, and the accused never argued the point.

In Paterson v Robertson 1944 JC 166, trespass was treated by Lord Moncrieff and Lord Justice General Normand as distinct from the further act of “effecting a lodgment”, necessary for a breach of s 3 of the Act. In Paterson and in Henderson, the accused had slept overnight in the premises; in Henderson they had also been eating meals there. It therefore appears that the word “lodging” requires living in or at least staying overnight and taking meals in the premises, for however short a period – visitors, and people occupying for other purposes, or on a rota basis, are excluded. The use of a rota is the successful approach taken by housing activists in England & Wales to circumvent s 144 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, which criminalises trespass in a residential building by someone who is “living or intends to live there”.

Former lawful occupiers

Does the Act apply to former lawful occupiers holding over after permission has ended? In Paterson v Robertson, former subtenants returned almost immediately after being evicted, living at their former home for a few days. They were subsequently charged under the Act. They were treated as trespassers and found guilty because the subtenancy had been “terminated in law and their possession determined in fact” (per Lord Moncrieff).

However, Paterson seems distinguishable from cases where the former tenants remain without parting with possession, as arguably their “lodgment” forms part of an occupation which was lawful initially and as a whole, rather than constituting “a fresh lodgment” without consent.

Both scenarios would now be subject to the ruling in Kay v UK which, as discussed below, would make it unlawful for former lawful occupiers to be evicted without being given a chance to challenge the proportionality of the eviction in court.

Police powers

Following Henderson, the Act bestows on police the power to arrest squatters without a warrant. However, Lord Jauncey made it clear that any attempts by the police “to remove someone from premises for the sole purpose of terminating his presence there”, as by providing assistance to an owner evicting squatters, would be illegal.

It appears that the position as regards warrant-less arrest powers will remain the same following the commencement of s 1 of the Criminal Justice (Scotland) Act 2016. However, s 2(2) provides that someone charged with an offence cannot be arrested without a warrant for “an offence arising from the same circumstances”. It seems that a squatter who is charged and then continues their occupation cannot be arrested without a warrant.

Human rights

In certain cases, arrest resulting in the eviction of an occupier under the Trespass Act will be an interference with the occupier’s right to privacy and family life under article 8 of the ECHR.

Following Kennedy v UK (26839/05) [2010] ECHR 682, such interference may be lawful only if it is sufficiently accessible, clear and foreseeable as to its application. The number of ambiguities in the Act, especially with regard to its application to vehicles used by Scottish Travellers, who form a significant portion of arrests made under the Act (FOI request R014033 to Crown Office & Procurator Fiscal Service, 7 September 2016), would arguably fall foul of this requirement. The Act therefore appears quite vulnerable to human rights challenges, and it seems remarkable that no test cases have yet arisen, especially given that Police Scotland receive no guidance or training whatsoever on its application (FOI request 16-1704 to Police Scotland, 19 August 2016).

Any new statute in this area would, following Kay v UK (37341/06) [2010] ECHR 1322, need to either exclude former lawful occupiers or provide them with the opportunity to have the proportionality of their eviction assessed by an independent tribunal, or risk being declared unlawful under s 29(2)(d) of the Scotland Act 1998.

B. The civil law

The delict of trespass

Trespass has been described as “temporary or transient intrusion into land owned or otherwise lawfully possessed by someone else” (Reid, The Law of Property in Scotland (1996), para 180). Rankine describes the word as an English import “unknown in our early law”. When trespass is more than transient, it more properly falls under the delicts of ejection or encroachment (Rankine, 128). To evict squatters, a landlord can begin a summary cause action for the recovery of heritable property, under the Sheriff Courts (Scotland) Act 1971, s 35(1)(c). In order to succeed in an action of ejection, the pursuer must prove their title to the property and the defender’s lack of title (Cairns v Innes 1942 SC 164, per Lord Moncrieff). Where there is an existing or historical landlord and tenant relationship between the squatter and landlord, an action of removing will be the correct approach.

The remedy of interdict is available against trespassers, but is granted at the discretion of the court. Where the pursuer knew of the occupation but delayed in applying for interdict, this will usually bar such relief: Rankine, 15, notes 54, 55. Specific relief may also be requested in circumstances where an interdict might be granted, under s 45 of the Court of Session Act 1988.

In the case of evictions of protest occupations, following Scottish Parliamentary Corporate Body, Petrs [2016] CSOH 113, the ECHR articles 10 and 11 rights to freedom of expression and freedom of association are engaged and the courts must therefore declare any eviction as proportionate before ordering eviction. Following English authorities such as Haw [2011] EWHC 585 (QB), Samedi [2012] EWCA Civ 160 and Tabernacle [2009] EWCA Civ 23, the court stated that relevant factors will include whether there is a pressing social need for the petitioner to recover possession and whether the act of occupation is a vital element of the protest.

Applications for interdict or specific relief are much more vulnerable to human rights proportionality defences, bearing in mind the draconian nature of these orders, which are backed by criminal sanctions.

Spuilzie

The delict of spuilzie (the forcible taking of property) would, if it continues to be available, make most self-help evictions of squatters unlawful and provide a powerful remedy against such evictions. (Although the word spuilzie is used here, when the property concerned is immoveable a spuilzie is more accurately called “ejection”: Reid, Property, para 161.)  

In Scots law it is a spuilzie for anyone vitiously to deprive someone of their possessions – this applies to both moveable and real property. For spuilzie purposes, the control a squatter exercises over a secured building would qualify as possession. An eviction would be vitious if it was carried out without judicial authority and without the consent of the possessor. Whether the person dispossessed was unlawfully in possession, as in the case of a squatter, and whether the dispossessor is the rightful owner, are of no relevance, as spuilzie is based on possession and not title (Reid, para 163).

In practice, this means that a forcible self-help squat eviction by a landlord would be a spuilzie and entitle the squatters to an order of ejection against the spuilzier (in this case the landlord), thereby restoring them into possession. However, a landlord may use self-help against dispossession of a property by squatters, but only if this is done immediately and before possession has been completely lost – in such cases the self-help eviction will not be a spuilzie (Erskine, Institute, II i 23).

Although there has been no action founded on spuilzie for about 200 years, it has not been abolished by any statute, and, following McKendrick v Sinclair 1972 SLT 110, a Scots common law doctrine cannot be removed by desuetude. It therefore seems that the Scottish courts would consider an action based on spuilzie, regardless of the doctrine’s decline.

The Court of Session Acts

Cited by the Scottish Law Commission (Memorandum No 31 (1976), Corporeal Moveables: Remedies, para 24) as a basis for the abolition of spuilzie, s 91 of the Court of Session Act 1868, as partly re-enacted in s 45(a) of the Court of Session Act 1988, provides what appears as a statutory version of the delict: “The Court may, on application by summary petition– (a) order the restoration of possession of any real or personal property of the possession of which the petitioner may have been violently or fraudulently deprived”.

As with spuilzie, there is no requirement that the petitioner have any right or title to the property, thus providing a squatter with immediate redress against brevi manu eviction.

Perilous uncertainty

The very ambiguous jumble of criminal and civil legislation and case law makes the law on squatting very fertile ground for litigation. In the absence of any test cases, it seems inevitable that squatters will be subject to arbitrary and often illegal treatment by untrained police. Likewise, squatters forcibly evicted without any court order will need to establish, or re-establish as the case may be, a right against extrajudicial evictions.

However, this uncertainty of the law is just as perilous for police and landowners as for squatters, as it renders the legality of many arrests and self-help evictions highly questionable. As matters stand, it seems that the only approach not carrying the risk of expensive litigation would be for police to refer landowners to the civil courts, where they can start an action for ejection.