It has been widely reported today that squatting is becoming a criminal offence following the UK Government’s recent legislation. It should of course be noted that this legislation and change of law applies solely to England and Wales and not Scotland.
The position in Scotland is not affected as squatting is already criminalised under the Trespass (Scotland) Act 1865 which makes it an offence to lodge or encamp on private property.
That does not mean, however, if you are a victim of squatting the Police will always come to your rescue as sometimes they do not wish to get involved in such matters. Indeed, very few prosecutions have taken place in Scotland in terms of the existing legislation. If the Police were to refuse to be involved in removing someone from your property, the advice would be not to take any action yourself. This could potentially be an illegal eviction. Even squatters could rely upon possession of a property as a real right and one which means they can only be evicted by consent or by order of the court.
How to evict a squatter
A squatter is someone who would be occupying your property without any right or title to do so. It is also unlikely that you will be aware of their identity.
As with all evictions, the correct form of action in such a matter would be a Summary Cause action in the local Sheriff Court.
The Summary Cause Rules helpfully allow a Pursuer to raise an action against persons in possession of such property without right or title to do so and to simply raise the action against “the Occupiers” of the property. It is therefore not necessary to find out the names of the squatters. It is possible under the same Rules to make an application to the court to shorten the period of notice which must be provided before the case will call in court. Essentially this allows you to speed up the eviction process and in cases where squatters are involved the court action has often been completed by us within about 7 days.
It is usually advisable, although arguably not necessary, to, firstly, serve a letter or notice on the occupiers of the property that an eviction action will be raised if they do not vacate. Normally a 24 hour notice can be extremely effective if served by Sheriff Officers and many squatters or unentitled occupiers will vacate the property without the owner incurring the legal costs involved with a court action.
The ultimate eviction order granted by the court can only be enforced by Sheriff Officers and legal practitioners should take care to ensure subsequent notices which normally have to be served by Sheriff Officers in normal eviction actions are dispensed with so the eviction can be carried out immediately.
It should also be noted that when raising eviction proceedings you can also sue for “violent profits” which can find the occupiers liable to pay the owner a punitive amount of what are effectively damages for their unlawful occupation. This amount which would be payable by the occupiers can be double the market rent. Of course if you do not know the names of the occupiers/squatters, then such an award would be fruitless as you would not ultimately be able to enforce that order against anyone.
For further details on the procedure for evicting a squatter or unentitled occupier from your property, please do not hesitate to contact one of our Housing Team who would be happy to assist and discuss matters with you.
