Squatting
Squatting is a type of direct action where people occupy empty houses and other buildings in order to have accomodation. It is often illegal, which is why squatters are under-served by the legal community. Most offences are very minor and do not interest private sector lawyers, while the various housing advice services do not assist as their role is to assist tenants and those who live in boarding houses. Squatters may not get assistance from legal services specialising with those who are homeless.
(pictured: squatters resisting eviction by a Catholic-owned College, Sydney University, Sept 2011).
(pictured: squatters resisting eviction by a Catholic-owned College, Sydney University, Sept 2011).
General information on squatting can be found at Squat Space. Tenants can get help by contacting services such as the Tenants Rights and Advocacy Service. Homeless people may wish to contact the Homeless Persons' Legal Service.
Possible criminal offences
There are essentially two criminal offences which may be committed when it comes to squatting. The first (and rarest) is "malcicious damage to property."
The second (and more common) is an offence of entering (or remaining) on enclosed lands. Charging people with entering enclosed lands is more difficult to proove. A defence to entering enclosed lands is the so-called implied license to enter. The strict wording of the Act......
The most common offence is remaining on enclosed lands.
Police can not pre-emptively evict people, but must Act after a person has been asked to leave by the landlord or......
(clever legal point: It is a possible defence to say that the police can not act as an agent of the landlord, as that is not provided for in the legislation. At least one lawyer has expressed doubt as to whether that is legally correct, however the defence was successfully argued in a Sydney Local Court in July 2012 in relation to a similar charge (remaining on enclosed land, being the property of the Reserve Bank of Australia, during the Occupy Sydney protests)).
Another possible defence is that one was invited onto the enclosed lands by a person who appeared to be in lawful occupation. Some squats may have been occupied for years, with electricity and other services connected, and a person being invited in by the apparent lawful occupant would not be aware that the house was a squat. As there is an absence of what lawyers call mens rea (an intention to break the law) - there would be no offence.
Squatters license
A "squatters license" has no exact meaning but usually refers to when an owner of property discovers that people are living in one his / her houses, and then allows people to stay providing that they do the gardening and basic maintenance. Squatters who live in such accomodation and clean up a bit may be preferred to squatters who occupy the house and commit malicious damage.
The essential feature of the squatters license is that squatters pay no rent (if they paid rent, they are arguably tenants, and therefore have various legal protections). Additionally, they have a "license" to stay, which means that the squatters are not committing an offence of entering and /or remaining on enclosed lands. Squatters staying under a "squatters license" are committing no offence.
It is sometimes erroneously thought that such squatters can be evicted by the landlord at any time. This is not quite correct. The license may be revoked at any time, but people then have a "reasonable" time to leave. There is no clear case law deciding what is a reasonable time in these circumstances. However, it is suggested that owners can not lawfully tell people with a "squatters license" that there license is cancelled immeidiately and be on the street within (say) 5 mins. The quick intervention of an assertive lawyer may assist in negotiating extra time.
(Legal / academic point: s18 Imperial Acts Application Act 1969 (NSW) retains provisions relating to entry onto land with reasonable force from old English statutes. It is not clear what impact, if any, this has on squatting.
There are essentially two criminal offences which may be committed when it comes to squatting. The first (and rarest) is "malcicious damage to property."
The second (and more common) is an offence of entering (or remaining) on enclosed lands. Charging people with entering enclosed lands is more difficult to proove. A defence to entering enclosed lands is the so-called implied license to enter. The strict wording of the Act......
The most common offence is remaining on enclosed lands.
Police can not pre-emptively evict people, but must Act after a person has been asked to leave by the landlord or......
(clever legal point: It is a possible defence to say that the police can not act as an agent of the landlord, as that is not provided for in the legislation. At least one lawyer has expressed doubt as to whether that is legally correct, however the defence was successfully argued in a Sydney Local Court in July 2012 in relation to a similar charge (remaining on enclosed land, being the property of the Reserve Bank of Australia, during the Occupy Sydney protests)).
Another possible defence is that one was invited onto the enclosed lands by a person who appeared to be in lawful occupation. Some squats may have been occupied for years, with electricity and other services connected, and a person being invited in by the apparent lawful occupant would not be aware that the house was a squat. As there is an absence of what lawyers call mens rea (an intention to break the law) - there would be no offence.
Squatters license
A "squatters license" has no exact meaning but usually refers to when an owner of property discovers that people are living in one his / her houses, and then allows people to stay providing that they do the gardening and basic maintenance. Squatters who live in such accomodation and clean up a bit may be preferred to squatters who occupy the house and commit malicious damage.
The essential feature of the squatters license is that squatters pay no rent (if they paid rent, they are arguably tenants, and therefore have various legal protections). Additionally, they have a "license" to stay, which means that the squatters are not committing an offence of entering and /or remaining on enclosed lands. Squatters staying under a "squatters license" are committing no offence.
It is sometimes erroneously thought that such squatters can be evicted by the landlord at any time. This is not quite correct. The license may be revoked at any time, but people then have a "reasonable" time to leave. There is no clear case law deciding what is a reasonable time in these circumstances. However, it is suggested that owners can not lawfully tell people with a "squatters license" that there license is cancelled immeidiately and be on the street within (say) 5 mins. The quick intervention of an assertive lawyer may assist in negotiating extra time.
(Legal / academic point: s18 Imperial Acts Application Act 1969 (NSW) retains provisions relating to entry onto land with reasonable force from old English statutes. It is not clear what impact, if any, this has on squatting.
