Squatting becomes a criminal offence tomorrow. The Guardian gives us the story of Alan, a 40 year old art teacher:

[Alan] began squatting a few months ago when his marriage broke down. He enquired about social housing, but was told none was available. “I was born in London and have lived here all my life but it seems I’m expected to go somewhere else where I know nobody,” he says. “Is that what the big society is all about?”

His timing could not have been worse. From Saturday Alan and up to 20,000 other squatters in England and Wales face eviction as police prepare to enforce a radical change to the law which criminalises those occupying residential buildings. Ministers are calling it the “end of squatters’ rights” and the first guaranteed protection for home owners.

For 667 years, between 1166 and 1833, a far better remedy was available to property owners in England. It was called the Assize of Novel Disseisin and was a far more humane and proportionate response to the wrongful occupation of property than criminalisation.

King Henry I of England died in 1135 without an immediate male heir (his son had been drowned in the wreck of the White Ship in 1120). His daughter Matilda and another of William the Conqueror’s grandchildren, Stephen, both felt they had a claim. Stephen acted quickly, travelled to London and had himself crowned. Matilda then invaded and most of Stephen’s reign was disfigured by the ensuing civil war, during which many land holdings were appropriated, and re-appropriated, by force in the absence of legitimate civil authority.

When Henry II came to the throne in 1154, disputes over land holdings were one of his biggest domestic problems. The modern English legal system has evolved from the steps he took to deal with the crisis. King’s Justices, travelling the country holding courts to hear disputes about land tenure, called together juries of local worthies who could adjudicate based on their local knowledge and memories of who had held which pieces of land under Henry I, whose reign was taken as the reference point. In effect, Stephen was written out of history; any grants he had made were undone.

Henry also introduced two ‘Assizes’, or legal processes that could be called on where there were certain types of disputes over land occupation. Mort d’ancestor was aimed at situations where someone had been deprived of an inheritance, typically when the inheritor had been of minority age at the time of their relative’s death. Novel Disseisin dealt with what we now call squatting.

Obviously, that’s an anachronistic way to put it, but it would have dealt very well with squatting. If you felt your property was unlawfully occupied by other people, you could apply to the Sheriff for a writ of Novel Disseisin. In doing so, you would have had to prove that in the recent past you occupied the property yourself. If that could be shown, the Sheriff would issue the writ and the occupiers of the property would have had to leave immediately.

The point of this was not to circumvent proper legal process. The writ didn’t affect anyone’s rights. The ‘squatters’ could take the restored occupiers of the disputed property to court and show they had a rightful claim, if they did. All it affected was who was in possession of the property while this was being resolved.

The tactic of many squatters, especially the most cynical or openly abusive, is to occupy the property while the dispute is heard. When they lose, having caused great expense and distress to the property owner, they move on.

Novel Disseisin would have stopped this strategy working, without criminalising anyone and without infringing anyone’s rights.

The medieval approach was better than the modern, which ought to be a sobering thought.

UPDATE: On Twitter, JuliaM asked: “We criminalise other thieves, don’t we? Why not squatters? Why should they get a parallel legal system?” Since that’s a question a lot of people would feel warranted, I’ll answer it here.

Squatting is done by some of the most vulnerable people in society as well as some of the most predatory. Runaways squat, for example. While I do want the owners of property to have recourse to very fast and cheap restoration, I don’t want to see the vulnerable criminalised. This is especially true with the increased importance and use of Criminal Record Office checks by employers, which seem designed to make sure that offenders have no legitimate alternative to crime.

The writ of Novel Disseisin allowed property owners to get their properties back immediately, without expensive process, and also without criminalising the squatters unless some other crime is committed, like theft of furniture or damage. It would not prevent criminal proceedings if there were other crimes. I think that provides the best solution to the problem. It mixes effectiveness with compassion.

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  • http://thylacosmilus.blogspot.com JuliaM

    I don’t think it was better than the modern approach – theft is theft. We might call car theft by a different term. – joyriding – but it’s still theft, and punishable in the courts.

    There’s never any dispute over who actually owns the land in squatting cases, at least, none that I’ve seen.

  • Jon Lawrence Risdon

    Whilst I can sympathise with someone whose property is being occupied by another individual/s, if s/he genuinely owns that property [and ownership is not a straightforward issue] while it is standing empty for a short period, aside from the matter of basic humanity [lack thereof] in condoning a society in which the disadvantaged are written off as being feckless and consigned to shop doorways or crime-ridden slum hostels [either before or after their virtually inevitable sojourn in a for-profit prison], if that property cannot be used by the owner for a genuine reason [such as refurbishment or delays in conveyancing/relocation of employment etc.], ‘squatting’ would be an unfair denial of possession; however, notwithstanding the objectionable way that every penny possible is squeezed from private tenants, there are far too many properties which are left vacant indefinitely for purely commercial reasons, or where ownership is disputed, or sheer inertia [which implies a surfeit of wealth] which I consider indefensible. Criminalising squatters might please the ‘little Englanders’, but it won’t help the homeless.

  • http://thylacosmilus.blogspot.com JuliaM

    So what if a property is left vacant? If that’s what the owner wants to do, well, so what? It’s his property!

    If I’m not using my car, am I ‘penalising the carless’? If I have a bedroom I’m not using except for storage, should I be forced to rent it out?

    It’s nonsense. Emotional blackmail zp

  • http://thylacosmilus.blogspot.com JuliaM

    Please excuse the ‘zp’ I hit publish too soon!

  • David B. Wildgoose

    I think you’ve made an excellent suggestion Peter and I applaud the distinction made between squatting by the vulnerable, and predatory squatting and its attendant criminal damage.

    Although I would have preferred it if “John Lawrence Risdon” (any relation?) hadn’t made his offensive and bigoted comment about “Little Englanders”.

    I am a “Little Englander”, (despite my 6’5″ height). I believe in peaceful trading relationships with all and object to imperial aggression using our Armed Forces to “strut around” on the World Stage. Jon Risdon might approve of such behaviour, but as a “Little Englander” using its true meaning I do not. And it has nothing to do with squatting.

  • Peter Risdon

    David, Jon and I are cousins. We’re not entirely on the same page politically, but I’m glad he commented and hope he does again.

    I’m not sure what this has to do with Little Englanders, although if there were some connection I’d have expected LEs to advocate an English system that lasted the best part of seven centuries.

  • dcardno

    there are far too many properties which are left vacant indefinitely for purely commercial reasons, or where ownership is disputed, or sheer inertia [which implies a surfeit of wealth] which I consider indefensible.

    Bully for you. When you accept MY right to tell you how to conduct your life – what property to hold, how you must use your computer, whether you must (or shouldn’t) let your neighbour borrow your tools, and so on, then I’ll let you have similar control over what I do with my property. I have not heard of any squats where ownership is genuinely disputed – a link would be nice.

    Peter – the distinction between predatory and desperation squats is useful; any idea how they break down? I get the impression that the predatory outnumber the desperation kind, but that is probably due to media coverage: stories about predatory squats sell papers. I suspect is may also be because squats can gradually transform from desperation to predatory as a new cast of characters gets drawn in / becomes aware of the opportunity: I suspect the transistion rarely goes the other way.

  • http://thylacosmilus.blogspot.com JuliaM

    “Squatting is done by some of the most vulnerable people in society as well as some of the most predatory. “

    The ‘Guardian’ couldn’t seem to find any of the former to interview though, could they?

    I guess they must have relied on the talismanic powers of the words ‘art teacher’ and ‘voluntary worker for the NHS’ to sway their readership… ;)

  • Peter Risdon

    “… squats can gradually transform from desperation to predatory as a new cast of characters gets drawn in / becomes aware of the opportunity: I suspect the transistion rarely goes the other way.”

    I’m certain that’s right. It’s exactly what I saw happening thirty years ago when I knew people who squatted in London.

    Julia, I only needed the last sentence of the quote for my lead in, but couldn’t resist the art teacher story. The Groan never disappoints.

  • Furor Teutonicus

    XX JuliaM said:
    We might call car theft by a different term. – joyriding – but it’s still theft, and punishable in the courts.XX

    No
    Ah, no it is not. It is take and drive away. Unless it can be proved their was intention to permanently deprive the owner thereof”. Setting fire to it, or taking it back to Poland with you would do.

  • Torquil Macneil

    “theft is theft”

    Maybe, but squatters don’t actually ‘steal’ the property, do they? They just use it. No squatters actually make off with a piece of land to sell for cash in a pub off the Old Kent Road.

  • http://thylacosmilus.blogspot.com JuliaM

    FT, ok, it’s a slightly different charge, yes. It’s still a criminal one though!

    “Maybe, but squatters don’t actually ‘steal’ the property, do they? They just use it.”

    Sophistry! And no longer an excuse the scum can rely on.

  • Torquil Macneil

    “Sophistry! And no longer an excuse the scum can rely on.”

    ‘Scum’? Seriously? For people who sleep in empty properties? It seems strange to me that anyone should have such strong feelings abut owning stuff.

    The ‘theft/use’ distinction really isn’t sophistry. Imagine that you left your iPod on the table in the pub when you popped to the loo. If you came back and found it had gone, stolen, you would feel much more aggrieved than if someone was simply using it. Of course, you should have the right to have it back immediately if someone were using it without permission and if it were damaged you could sue, but the same goes for landlords. And what it you left the iPod on a park bench for months? Shouldn’t the people who take to using it (but not stealing it) have some rights if you march in and demand they desist? Shouldn’t they at least be able to insist that you prove that you are the owner?

  • http://davidthompson.typepad.com/ David Thompson

    “…squatters don’t actually ‘steal’ the property, do they? They just use it.”

    Similar sentiments were expressed in the Guardian not too long ago, with an air of “so what’s the big deal?” The oddly casual tone reminded me of the ridiculous Da! Collective, a member of which confidently announced: “Squatting is not a criminal offence. If the owners want to kick us out they’ll have to apply for an eviction notice.” Comments of this kind suggest a belief that the moral onus is, conveniently, on the owner of the property, not the people invading it, occupying it without the owner’s permission, possibly troubling neighbours and quite likely causing damage. By this thinking, if the actual victim of the trespass doesn’t complain formally via a solicitor, or complain quickly enough, or simply doesn’t know their property has been invaded… hey, it’s their fault, innit? That must be the “social justice” we hear so much about.

    Following a post at my place on advocates of radical squatting, an anonymous commenter claimed, also rather confidently, that “squatting is more like borrowing.” Well, borrowing usually implies consent and the voluntary return, intact, of whatever’s being borrowed. As opposed to a person whose property has been invaded then being forced to use costly legal means to recover it, and in addition having to pay for any repairs and outstanding utility bills. Maybe the borrowers should just steal the owner’s credit cards and run up a hefty bill. It would save everyone a lot of hassle.