Squatting what is it?
Squatting is the act of making use of empty, disused and abandoned property to provide yourself (or others) with free accommodation. Of course, this happens at the expense of others, and can have a severe effect on the amenity of surrounding properties.
While squatting itself isn’t technically illegal, it is considered trespassing and opens squatters up to liability for criminal offences.
So, How do I evict a Squatter who is NOT a Tenant?
If a trespasser or squatter is in occupation, the legal owner is allowed to use self-help measures to get their property back. The issue may be in firstly identifying the owner, and then convincing them to somehow get into the property and change the locks and secure it. The catch is whilst they can legally do this, they cannot use violent entry if one of the squatters is actually in the property at the time and opposes them.
Once identified, the ideal course of action is for the owner to call the police and have them evict the occupants as (subject to the exceptions around people such as tenants and previous tenants) they have no legal right to be there and are potentially in breach of Section 9 of the Summary Offences Act 1996.
Section 9 contains offences relating to trespass, such as entering a private place without authority, and neglecting or refusing to leave to leave a private place when instructed to do so by the owner, occupier or a person authorised to give that warning on behalf of the owner or occupier. An ‘authorised person’ would of course include a police officer.
A person who fails to obey an instruction (to leave) may commit an offence, and be subject to as monetary fine and 6 months imprisonment.
It is also worth remembering the police can pursue charges of wilful damage to property without identifying the owner.
What if a Tenant allowed the Squatter in?
If a tenant let squatters in (and assuming the landlord did not allow the tenant to sublet), it gets more complicated. In this case it’s probably best for the landlord to be safe and pursue the normal court possession options.
This is because if the landlord uses any ‘self-help measures’ (such as changing locks) and the tenant comes back, the landlord is in the wrong. In the absence of a court ordering possession in the landlords favour, they will have to let the tenant back in again, even if they owe rent.
Possession orders are in effect made “against the world”, meaning an order is valid against anyone who happens to be in the property, irrespective of whether they are named in court papers or not, so everyone who is in the property (including any squatters) must leave.
In order to find the owner it may be necessary to request the council contact them on your behalf, or alternatively a title search can be done.
For advice or assistance on this or any other matters contact David Heasley at www.heasleylawayers.com.au