Protection of empty, closed or infrequently used premises against squatters

Updated April 22, 2020

The Health Protection (Coronavirus, Restrictions) (England) 2020 (the Regulations), made under the Public Health (Control of Disease) Act 1984, required the closure of certain businesses and venues, and also restricted the trade which can be conducted at other types of premises. Furthermore, some tenants of commercial premises have made their own decisions to close or limit access to their business premises. Others, such as offices, are simply being used less frequently and by fewer people. High streets, retail and leisure parks seem deserted, and, against this background, travellers, protestors and squatters may see these premises as prime targets, particularly if there is a relative lack of security and ease of entry. Empty buildings pending development are equally attractive. This blog post sets out some tips for landowners, landlords and tenants to avoid trespassers entering onto land or into buildings in the first place.

Unfortunately, once squatters have entered and begun to occupy a building, they can be reluctant to leave, and removing them can be time consuming and expensive. New restrictions came into effect three weeks ago which limit landlords' rights to issue or pursue proceedings for possession in certain circumstances[1]. After some consternation in the legal profession, it has been made clear that these limitations do not apply to the issue and progress of proceedings, and enforcement of any orders for possession granted, against trespassers[2]. This will no doubt provide comfort to landlords and landowners who were concerned that the restrictions inadvertently gave trespassers the ability to remain on premises without the normal recourse available to them to take back possession of land. The restrictions also do not limit the ability of landlords and landowners to apply for an injunction to prevent an imminent invasion of squatters or protestors, should the requisite evidence of an imminent risk, in support of that application, be gathered. Additionally, an injunction to require anyone to remove items, and desist from damaging, premises could also be granted and enforced.

However, anyone requiring access to justice in these uncertain times will conceivably see some delays and interruptions on the ground including in the service of proceedings, the availability of a hearing, and the enforcement of any order for possession by a sheriff or bailiff.  They are also likely to witness variations in the court resources available to them. Therefore, prevention of squatters remains the best cure. Landlords will be mindful of their obligations not to derogate from grant, and to continue to allow their tenants quiet enjoyment of their premises.  Given some tenants may wish to be free of a liability to pay continuing rent under a lease,  this continuation of access is important so as to counter any tenant argument that might be raised that the tenant had suffered an eviction, or that a changing of locks e.g. to access the demise meant that there had been a landlord's termination/repudiation which the tenant could accept, or an argument that the lack of access amounted to the landlord accepting an implied surrender.

All this suggests that it is advisable that landlords and tenants work together where possible, to do all they can to prevent squatters entering onto land or into buildings in the first place.

There are some practical steps which will mitigate against the risk of squatters entering properties:

1. ensure that premises are as secure as possible. Depending on the nature of the premises, this could involve installing steel security doors and tamper proof locks to windows, skylights and doors, and fitting deterrents such as CCTV and sophisticated alarm systems;
2. consider whether it would be worthwhile employing security guards to stay at larger or more open sites round the clock, to patrol the premises and ensure that there is no opportunity for trespassers to enter and take possession of a site;
3. remove anything of value at the premises;
4. block up any less obvious points of access, if this does not create eg issues with fire regulations/safety or easements;
5. put up hoardings and signs to alert trespassers to the security measures which have been put in place, with the intention that they might then find the premises unappealing; and
6. carry out regular monitoring and inspections of the premises internally and externally to make sure that they remain secure and free from occupation by anyone unauthorised, so that any necessary action can be taken as early as possible.

The cost of some of these measures may be recoverable from the service charge, depending on the provisions in individual leases. However, given that the restrictions in place are temporary, landlords and tenants alike will want a tenant to be able to use their premises as soon as the restrictions are lifted and the public health situation allows. Spending money on security and deterrents at this early stage may pay dividends in the long run.

Should you require any further information in relation to removing any unauthorised occupiers from development sites when the restrictions are lifted, please read our previous blog post here.

[1] Coronavirus Act 2020, section 82.

[2] Civil Procedure Rules, Practice Direction 51Z.

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