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TRESPASSERS – OBTAINING POSSESSION QUICKLY

Posted on June 14, 2017

Duncan Bennington, Associate Solicitor in the Dispute Resolution Team, discusses the procedure for obtaining an interim possession order and enforcement against trespassers.

A property developer client instructed me recently when travellers had broken into a vacant site, due for development, over the course of a weekend.

Obviously, the client wanted to recover possession swiftly, and residents of properties neighbouring the site immediately started complaining to the client about noise (from generators, shouting and screaming), fences being vandalised and the accumulation of a significant amount of rubbish very quickly.

Prior to the trespass, the site had been secured with chains and padlocks around the gates, 3 meter high hoarding and 4 three ton concrete blocks behind the gate.

The client contacted the police, but they initially declined to take any action to evict the trespassers. I was therefore instructed to start civil proceedings to obtain possession.

The Criminal Justice and Public Order Act 1994 introduced Interim Possession Orders (IPO). This is essentially a fast track procedure for obtaining possession of land from trespassers. The procedure itself is set out in the Civil Procedure Rules.

Firstly, a claim must be started by the land owner in the county court local to the occupied premises. This involves drafting a claim form and witness statements in support, together with an application for an interim possession order.

There are a number of conditions that the Court will require to be met before making an IPO:

  • The occupied premises must be a building, part of a building or land ancillary to a building. It does not apply to open land.
  • The claimant must have an immediate right to possession of the premises being occupied and that right must have existed for the whole time the premises were illegally occupied.
  • The claim must be made within 28 days of the owner finding out the premises were being occupied.
  • An IPO cannot be used to evict former tenants, sub-tenants of licensees.

The owner must also give certain undertakings (promises) to the Court, including:

  • to allow the trespasser back into the premises and pay them damages if an interim possession order is made and the court later decides the owner was not entitled to the order; and
  • not to let the premises to anyone else or damage them, or dispose of any of the trespasser’s possessions until the court makes a final decision on the right to possession.

Obviously, in most cases, the land owner will not know the trespasser(s) name, so the application can be made against ‘Persons Unknown’.

Once the application for an IPO has been issued, it must be served on the trespasser within 24 hours. It does not need to be personally handed to the trespasser but should be fixed to the door of the premises, attached to a wall in a prominent place, or attached to a stakes in the ground.

A Court hearing will be listed (which must be not less than 3 days after the IPO application is issued), but it should be as soon as reasonably practical – this will inevitably involve pressing Court staff to give the earliest possible date.

If at the hearing, the Court is satisfied that the conditions (set out above) are met, it will grant the IPO which must then be served on the trespassers (in the manner set out above) within 48 hours.

If the trespassers fail to leave within 24 hours of service of the IPO, or return within 12 months, they commit a criminal offence.

The difficulty land owners then face is whether or not the police are prepared to take action to evict the trespassers – very often, the police will only get involved where there is obvious criminal activity being committed.

In my recent case, the police were prepared to assist, because of the number of vehicles parked on the land.

Under the Criminal Justice and Public Order Act if a senior police officer present at the scene reasonably believes that two or more persons are trespassing on land and are present there with the common purpose of residing there for any period, that reasonable steps have been taken by or on behalf of the occupier to ask them to leave and—

(a) that any of those persons has caused damage to the land or to property on the land or used threatening, abusive or insulting words or behaviour towards the occupier, a member of his family or an employee or agent of his, or

(b) that those persons have between them six or more vehicles on the land,

he may direct those persons, or any of them, to leave the land and to remove any vehicles or other property they have with them on the land.

Shortly after the claim and application had been served on the trespassers, and after some pressing, the police served a notice directing the trespassers to leave because there were 12 vehicles on the land.

The trespassers left almost immediately. Unfortunately however, very often, things will not end so simply. For example, where there are less than six vehicles on the land or the police decline to take any action because there is no obvious criminal activity.

In that situation, it is necessary to proceed with the Court claim for possession and obtain a Final Possession Order. A second Court hearing is required (which must be not less than 7 days after the IPO hearing).

Once the Final Possession Order is made, the land owner will be able to enforce it by instructing a High Court Enforcement Officer (Sheriff) to evict the trespassers and obtain possession.

The system is not perfect; it would be preferable if the land owner was able to enforce the Interim Possession Order by way of High Court Enforcement Officer eviction, but if you move quickly, and are able to press the matter along, possession can be recovered relatively swiftly.

If you need to recover possession of property or land, from trespassers, residential or commercial tenants, feel free to contact our dispute resolution team.

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