Squash those squatters: how to regain possession of your development site

Author: Rhian Arrenberg, Professional Support Lawyer, Real Estate Dispute Resolution, London

A key concern for anyone involved in the development of land will be the landowner's ability to secure vacant possession of the development site in order for work to start.   Once occupational tenancies are terminated, development sites and units within them can often be left empty.  These can then become prime targets for squatters.   We have seen a recent increase in protesters and travellers occupying high profile development sites either in order to disrupt progress of the development, or simply as a place to live or work until moved on (in the case of travellers). The recent criminalisation of squatting in residential premises has driven squatters towards commercial sites, and typical development sites offering empty retail, office and industrial premises can be attractive to squatters particularly where there is a lack of security and ease of entry.

Whilst prevention is always better than cure (we will write soon on preventing squatters occupying in the first place), developers are likely to own a number of empty properties at any one time, and even with good security, it is no easy task to keep watch on the properties at all times, especially because well-practiced squatters will adopt a covert approach. By the time illegal occupation is discovered, the occupiers may be greater in number, occupying a larger part of the premises than before.

So, what can be done about squatters?  In this post we discuss methods which can be used.

The default position is that trespass is a civil matter, and there are two main types of civil action that can be taken against trespassers: 

(i)                Instruct a specialist private bailiff to take steps on the landowner's behalf physically to remove a trespasser using 'reasonable force'. However, extreme caution would be advised here, as if the bailiffs use force that exceeds 'reasonable force', the landowner will be responsible for their actions. It is a criminal offence to use or threaten violence, or to enter premises by force which are occupied by trespassers where one of more of the occupiers are opposed to the owner's entry. Experienced trespassers can be very well versed in their rights and the protection which the criminal law affords to them. Therefore this remedy is not frequently used.

(ii)            Possession proceedings. Unless there are complicated disputes of fact, points of law of general importance, or there is a substantial risk of public disturbance, possession claims must be started in the  County Court for the district in which the property is situated. Possession can only be sought in respect of the land which is actually being occupied by the trespassers unless the landlord can show a real risk that the squatters will move onto other connected parts of the land.  

Once the claim has been issued, the Court will set a hearing date, and the proceedings must be served on the trespassers at least two clear days before the date of the hearing. Squatters are very unlikely to have a defence in law to a possession claim. If they choose to defend the claim at the hearing, the only genuine argument available to them will be defects in the way in which the proceedings were served on them. At the hearing, a landowner would be seeking the grant of an order for possession, which proves that the landowner is entitled to possession. Should trespassers not vacate the property voluntarily at this stage, the order would be enforced by a court enforcement officer (County Court bailiff or if the case is transferred to the High Court for enforcement, High Court Sheriff).  

Frustratingly for landlords, this process can take some time, usually measured in weeks (and sometimes longer, if the Court listings are full).  Whilst there is a process to allow a landowner to speed things up by obtaining an "interim possession order" ("IPO"), this is again not a favoured approach, as a claim for an IPO must be made within 28 days of the date on which the landlord first knew, or ought to have known that the trespassers were in occupation. Some professional squatters will take the opportunity to notify the landowner (usually by anonymous letter or email) that they are in occupation, so that the 28 day time limit starts running as soon as possible. This is often done in the hope that the landlord will not have sufficiently geared up to take action in time to be able to use the IPO procedure. Even if the squatters do not notify the landlord, because of the fact that developers often have large portfolios of empty properties, it is difficult to argue that they could not reasonably have been aware of the squatters' presence, especially given that it could be thought that the properties should have been better patrolled.

Squatting in commercial premises, by itself, is not a criminal offence. Therefore, unless the landowner can prove criminal damage, there is a public disorder, or the landowner can prove that he has the right to occupy the premises for a residential purposes, the police will not usually directly intervene in a case of trespass.  As regards criminal damage, it is sometimes possible to prove that the occupiers broke the lock to enter the premises (e.g. this may be evident from CCTV), which may then give the police grounds to arrest the occupiers and in the process remove them.  This does however depend on solid proof of damage to the lock, and for the police to be interested in pursuing the issue.  There may be more willingness on the part of the police to intervene if it can be demonstrated that the occupiers are committing the criminal offence of 'aggravated trespass' (section 68 of the Criminal Justice and Public Order Act 1994, as amended). This is committed if a trespasser  does anything which he intends to intimidate or obstruct or disrupt lawful activities on the occupied land (and buildings) or neighbouring land. The maximum penalty for this offence of three months' imprisonment, or a fine of £2,500, or both. It is also an offence to ignore the directions of a uniformed police officer to leave land, when the officer believes that a person is committing or about to commit the offence of aggravated trespass, or to return to the land as a trespasser within three months (section 69 of the Criminal Justice and Public Order Act 1994, as amended). These offences have in the past been directed at hunt saboteurs and protesters, but their use relies on the willingness of local police to become involved. Unfortunately, due to a lack of resources, the police are generally unable or unwilling to direct their time towards trespassers.

The eviction of well informed and experienced trespassers can be a time-consuming and stressful process for landowners.   Both protesters and travellers are usually well-versed in procedure and the law, and will deploy many tactics to make the landlord's task more difficult.  Should you require any advice in relation to removing any unauthorised occupiers, please contact any member of the Real Estate Dispute Resolution team. 

*Note: this commentary provides a synopsis of the law and procedure relating to the recovery of possession of commercial property when it is unlawfully occupied by trespassers. It does not cover the situation where the trespasser is a former tenant or licensee holding over after the termination of a tenancy or licence

For more information please contact: