Squatters defences to possession claims

A squatter could have a defence allowing them to get more time to find alternative accommodation or, in a small number of cases, defeat possession.

This content applies to England

Defence to possession claims

There is no legal obligation on a squatter to file a defence to a possession claim by the owner or landlord.

If a squatter does file a defence, the standard defence form N11 must be used.

The following defences may either delay proceedings and give squatters more time to find alternative accommodation, or, in a small number of cases, may prove a complete defence to possession proceedings. A possession order under Section 1 of Part 55 of the Civil Procedure Rules can be set aside if there is evidence to support it.

An owner/landlord may also be willing to negotiate a suspension of the proceedings in order to give the squatters time to find another place to live.

Squatter is actually a tenant or licensee

The squatter has a defence if they can show that they have permission to occupy the property, either as some kind of tenant or as a licensee, and that this permission has not been terminated. The landlord of the premises may have asked the squatter for rent or in some other way created a temporary licence or a tenancy. If the landlord had not ended this correctly, then their claim for possession will fail.

Acceptance of rent may be considered proof of a tenancy unless there was an error. Courts are generally reluctant to accept that error is involved if more than three or four payments have been made.

Owner or landlord does not have title

The owner/landlord cannot evict the squatter if they do not have ownership or some other such right to the property.

The landlord should be able to produce evidence of their ownership of the property, such as an 'office copy entry' from the Land Registry, or even title deeds (which are now rare). Where the owner/landlord has a lease or a tenancy, a copy of this should be produced as evidence.

If the owner/landlord cannot prove their title to the property, the squatter may be able to rely on this as a defence.

Owner or landlord does not have immediate right to possession

An owner/landlord cannot obtain an order for possession if they do not have an immediate right to possession of the property from which they want to evict squatters.[1]

The owner/landlord does not have an immediate right to possession until a tenancy, lease or licence has been legally terminated. They cannot therefore bring possession proceedings until this has taken place. The interest of any tenant must first be terminated by the appropriate notice or court order, or by surrender.

A tenant who has abandoned a property has not necessarily have ended the tenancy by 'surrendering' it. For surrender to occur, the tenant must have done something inconsistent with the tenancy continuing, which the owner/landlord must have accepted as ending the tenancy; for example, if the tenant handed the keys back to the landlord.

When a tenant dies, the tenancy becomes the responsibility of their personal representative and does not end until a notice to quit has been served. The owner/landlord can only issue proceedings against any squatters in the property once a notice to quit has expired.

Not giving sufficient notice of the hearing

It may be possible to show that the owner/landlord has not complied with the proper service procedure requirements, for example that they failed to serve the relevant documents at least five days before the hearing. Neither the day of hearing nor the day of service count towards the five days.

The only exception to this is for urgent cases, the court can allow shorter service.

However, insufficient notice of the hearing is a relatively ineffective defence because all the court will do (if anything) is decide the issues and adjourn the actual making of the order for possession until the first proper day. In these circumstances, all the squatter will gain is one or two days at most.

Known occupier not named

There is a defence to the proceedings if an occupier whose name is known is not named on the application.

However, if a squatter appears in court and states that they have not been named, the court is likely to ignore the technical mistake on the grounds that the squatter is aware of the proceedings and has not been prejudiced.

Property not solely occupied by squatters

Where the property is partly occupied by people who are not squatters, a claim for possession cannot be brought. The property must be occupied by trespassers only.

For example, where a property is divided into two flats, Flat 10A and Flat 10B, but the owner/landlord states in the claim form that they seek to evict a squatter in Flat 10, this may operate as a defence for the squatter, albeit a technical one.

Judicial review

Where a squatter is occupying property belonging to a local authority, it may be possible for them to challenge the local authority's decision to bring possession proceedings by applying for judicial review. In this situation, the squatter would ask the court to adjourn the possession proceedings pending the outcome of the application for judicial review.

If the squatter can show that the local authority has a legal duty to provide them with housing, but that it has failed to do so, it could be argued that the authority has made a mistake in going to court to evict the squatter. In applying for judicial review, the squatter would be arguing that the local authority's decision to evict them is unlawful because, in reaching that decision, it failed to consider its mishandling of the squatter's homelessness application.[2]

The squatter cannot, however, use this argument if they were already squatting in the property before applying to the local authority as homeless, unless it was the local authority's refusal to house the squatter that led them to occupy the property as a squat.

Judicial review has also been used as a defence on the grounds of a lack of authority on the part of the local authority officer who took the decision to evict. However, in one case that reached a final hearing, the squatters lost because the judge refused to investigate the internal organisation of the council.[3]

Protection under human rights legislation

A squatter may attempt to use the provisions of the European Convention on Human Rights, which were incorporated into law by the Human Rights Act 1998, as a defence to possession proceedings.

Examples of potentially relevant rights include the right to respect for one's private and family life (Article 8) and the right to enjoy one's possessions and not to be deprived of them (Article 1 of the first Protocol). It may also be possible to argue that the interim possession order procedure does not constitute access to a fair hearing within the meaning of Article 6 of the European Convention on Human Rights, and under this procedure, squatters have a substantial disadvantage and do not have a proper opportunity to present their case.

However, a defence on this basis alone is unlikely to succeed. The provisions of the Human Rights legislation do not actually give the squatter a right to a home. In a case where squatters had established a home on private land, the Court of Appeal, in deciding whether or not the making of a possession order against them was compatible with Article 8, held that this was a proportionate means of achieving the legitimate aim of enabling the landowner to regain possession.[4]

The High Court found that protesters occupying land could be evicted by the freeholder local authority even though their rights under Article 10 and Article 11 were engaged. The occupation interfered with the rights of the public justifying a 'pressing social need' to make a possession order.[5]

Although squatters are no longer limited to answering questions based on the information provided in their witness statement and can participate in the hearing without having filed a witness statement, generally, the interim possession order procedure is considered, by many practitioners in this area, to be non-Human Rights Act compliant. A squatter who does not have adequate notice of the hearing, or who cannot attend through no fault of their own, cannot apply to have the order set aside under Rule 39.3 of the Civil Procedure Rules 1998 (where a party does not attend and the court gives judgment or makes an order against them, the party who failed to attend may apply for the judgment or order to be set aside); the squatter can only have the order set aside if they have left the property.

Last updated: 23 July 2021

Footnotes

  • [1]

    Wirral BC v Smith and Cooper (1982) 4 HLR 81 CA; Preston BC v Fairclough [1982] 8 HLR 70.

  • [2]

    West Glamorgan CC v Rafferty (1986) 18 HLR 375 CA; Avon CC v Buscott [1988] 1 All ER 841 CA.

  • [3]

    R v Southwark LBC ex parte Bannerman et al (1990) 22 HLR 459 QBD.

  • [4]

    Malik v Fassenfelt [2013] EWCA Civ 798.

  • [5]

    London Borough of Lambeth v Grant & Ors (Rev 1) [2021] EWHC (QB).