Norfolk police claim trespasser is a tenant?

Hi Chris, my absent (legal) tenant entrusted a key to his "mate" to look after the house in his absents, one way or another, the house ended up being used by multiple people as a party house, drugs and anti-social behaviour was reported. keys would have been in the house, and anyone of the persons visiting could have taken a either a key, or borrowed a key to make copies, this is what seems to have happen, as the "mate' of the absent tenant who’s remains unknown to me, claims he still had his key after the occupier turn up.
The absent tenant said (back up by text) that he had not given his permission to anyone to occupy.
Being in possession of a key would be easy to achievable in some circumstances ie upon viewing a property for let or for sale, or gate crashing a party etc.
there is no doubt having a key would give an element of support to an occupier claim they believed they initially had permission and could easily create a false AST.
However once it is established that nobody with authority gave the occupier a tenancy, not only are they not tenants but they are from that point aware they are trespassers (under civil law)
The wayI read the law is: if they then leave the property and re-enter with the intent to occupy they turn themselves into trespasser under criminal law.
The guidance via CPS is quoted by the inspector as "The advice is that entry relate to INITIAL ENTRY and not any subsequent leaving and returning."
I don’t think there is any doubt that in my case the occupant was a trespasser, not a tenant.
This begs a different question, (maybe someone should start a new thread) my question now is, when (if at all) does a residential trespasser status turns from Civil to Criminal?
My view is: Criminal trespass occurs at the point of entering a property with the intent to occupy knowing they are trespassing.
The wording of the law does not stipulate “initial entry” however it seem the CPS GUIDANCE does.
The implication of the guidance is that the status of civil trespasser (such as someone claiming they initially believed they had permission) would not change to that of an illegal trespasser even after they are aware and continue to occupy.
I don’t believe the law intends to allow this literal “get out of gaol card”.
What do you think?
Is this a case to “Bring in the Sweeney” ????
It the guidance is not challenged I envisage would-be squatters enticing leaving tenants to sell them a key. Ads all over Gumtree and the like. the result being the landlords having to seek civil proceedings just as pre-this law.
Kris

Reply to the comment left by Chris Baker at 03/03/2019 - 14:28
Kris, I repeat for the third and last time, you need to instruct the Sheriffs Office to get you an IPO ( Interim Possession Order.) My company does this kind of work, but whether the Sheriff's Office would be able to get the IPO for you themselves, you'd have to ask them.
Your not going to get them out by Forum advice alone !

Reply to the comment left by terry sullivan at 28/02/2019 - 12:06
That’s kinda what I meant…it’s no longer a (legal) thing - certainly not how/like it used to be.

Reply to the comment left by Chris Baker at 03/03/2019 - 13:18
Hi Chris
As I said at the outset, I am not a specialist in criminal law. That said if the police won't help you, and if you now boot the occupier out the police will be on to you in a flash. You will have to incur substantial legal fees to defend yourself and if your interpretation of the law is wrong you end up with a criminal record. Take legal advice and bring a civil case.

Reply to the comment left by Chris Daniel at 03/03/2019 - 14:58
HI and thanks you all very much for your input.

Chris Daniels and others of the same thoughts as Chris.

Just to clarify, a warrant for possession is already in process.
However, because the police made a written statement that the occupier was a tenant, (even though I strongly believed the police wrong) bearing in mind their decision was made after two sergeants and their solicitor. I was conscious not to invite a claim against me of illegal eviction. I felt becasue of the polices stance and legal advise they would be quick to act against me if the "so called tenant" where to make a claim that she was illegally evicited if I used the N130 interim warrant, I must confess I have never used these so I dont really know if they are applicable to a standard tenant situation. Basically i aired on the side of caution, as a possession order had been on the previous tenant, the process of a standard warrant via county court should not take too long. I did in fact contact the Sheriffs Office they quoted 2 week longer than the county court and about £700 more. time will tell on whether the county court match they suggested timings.

Chris, don’t give-up on your input, and For future reference how can I or any others find your services?

Regards Kris

Reply to the comment left by Chris Daniel at 03/03/2019 - 13:08
HI and thanks you all very much for your input.

Chris Daniels and others of the same thoughts as Chris.

Just to clarify, a warrant for possession is already in process,
However, because the police made a written statement that the occupier was a tenant, (even though I strongly believed the police wrong) bearing in mind their decision was made after two sergeants and their solicitor. I was conscious not to invite a claim against me of illegal eviction. I felt if I used the N130 interim warrant; even if the process was successfully carried out, because of what the police classed her as a “tenant” I am not sure an interim order is appicable use agaisnt a tenant. Basically i aired on the side of caution., as a possession order on the previous tenant had already been achieved, I thought the process of a standard warrant via county court should not take too long. In fact I had contacted the Sheriffs Office, they quoted 2 week longer than the county court and about £500 more.
Time will tell on whether the county court match they suggested timings.

Chris, don’t give-up on your input, and For future reference how can I or any others find your services?

Regards Kris

Reply to the comment left by Ian Narbeth at 04/03/2019 - 10:02
Hi Ian,

Your input has been well received,
Clearly this law covers both a non-criminal and a criminal aspect of trespasser in residential properties.

I belive I have been careful not to act to the piont where I have to defend myself in court.

Having found first hand just how difficult the guidence is on this relitively simple law. What I would now like to do is get the CPS to re-word their guidance to enable the police act without confustion, so others in my pridicament in future get swift action from a clearler defined criminal aspect of trespass.

May I ask in you your own view as to my thoughts on the non-criminal aspect of this law.

This law graces “holding over” rights of a previous tenant. If my understand is correct, it class the holding over tenant as a trespasser but it is dealt with under civil law and classed as non-criminal trespass.

Such a holding over trespasser, is free to leave and return to the property as they please. If a landlord or other were to change the locks ie. while the trespasser went to the shops, My understanding is this would be classed a an illegal eviction and the landlord or other, would be commenting a criminal offence, am i correct?

My understanding of other non-criminal aspect of a trespasser is a trespasser who does not intent to occupy, (and therefore do not stay there, and leave when asked.) Also a person who believes, and importantly can back-up their belief that they have permission to be there. am I correct?

In such a case as a person believing they had permission, in your view, is such a person privilege to retain the non-criminal aspect of trespass once they are aware or should be aware that the permission they thought they had was in fact invalid. Furthermore in such a case if the landlord or other was to change the locks ie. when the such a trespasser went to the shops, would the Landlord or other be committing the offence of illegal eviction?

ref: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/220062/squatting-circular.pdf

The law states

Elements of the offence – points to prove
6. Subsection (1) of section 144 sets out the elements of the offence. The offence is committed when:
a, a person is in a residential building as a trespasser having entered it as such;
b,  the person knows or ought to know that they are a trespasser; and
c,  the person is living in the building or intends to live there for any period.

8. The person must know or ought to know that he or she is a trespasser. The offence will not capture someone who enters the property in good faith reasonably believing they had permission to do so. This might arise, for example, where a bogus letting agent encouraged an unsuspecting tenant to occupy somebody else’s property. In such circumstances, however, it might be reasonable to expect the ‘tenant’ to provide evidence of a tenancy agreement or rent payments to show they had a reasonable belief that they were not a trespasser. 



To my way of thinking, someone falling under the protection of section 8 of this law, are not protected from being captured from the offence of trespass under section 6 once their belief they were not trespassers had ended. What is your view?

Regards kris

Reply to the comment left by Chris Baker at 04/03/2019 - 16:48
Kris
If you are interested please call me 020 7822 1616. I would like to see the CPS giving correct guidance and your case would be a useful one to raise with them.

Reply to the comment left by Ian Narbeth at 04/03/2019 - 16:58Thanks Ian, it was lifting to speak with you.
If you are able to help to get the CPS guidance to match what I belive the law intends, then it will not just help landlords from what is otherwise an easy way for squatters to claim a few months of free living, at the loss and cost of the landlord, it will equally help the police carry out their duties without fear that they themselves could sue by the trespasser for illegla eviction due to poor wording of CPS guidance being used against them.
Regards
kris

Reply to the comment left by Chris Baker at 03/03/2019 - 13:18Kris,
I have posted regularly on this forum various articles, the most recent being on the Lack of Justice in Housing. Minimal 'detective work' will reveal my company name without me blatantly advertise it here '-)
Thanks for your comments,
Regards