Date:

Illegal Occupiers in Scotland

Over the last few years the issue of illegal occupation of private land has been highlighted with a substantial increase in illegal travellers taking occupation of vacant and derelict sites with easy access for vehicles.

Unfortunately, many illegal occupiers are aware that, without a court order, the landowner has no authority to evict and so they can simply stay put and await a final order.

While raising court proceedings involves expenditure, sitting back and doing nothing is a high risk strategy. There is a potential for further damage to the property and the risk of others taking occupation illegally. The only guaranteed way of removing illegal occupiers is through court proceedings.

The Court Process

The process of obtaining an eviction order in Scotland is relatively simple. Initially, a letter is sent by Sheriff Officers asking the illegal occupiers to remove within 24/48 hours. Sheriff Officers provide a report detailing the number of illegal occupiers and a note of the vehicles on the property to be incorporated into the court proceedings. If the illegal occupiers fail to remove, a Summary Cause action has to be raised at the local Sheriff Court.

In the first instance, we liaise with the Sheriff Clerk at the local Sheriff Court and seek to reduce the period of notice to speed up matters. This process requires a hearing before the Sheriff because it may result in a departure from the normal period of notice (21 days) and is granted entirely at the Sheriff's discretion.

Assuming the Sheriff grants the reduced period (normally 48 hours), a return date and a calling date are then assigned by the Sheriff Clerk. Sheriff Officers are required to serve the summons before the return date to give the illegal occupiers time to respond and they do so by fixing a copy of the summons to stakes at the entrance, exit and in the middle of the property.

The return date is the date by which the illegal occupiers must send a written note of any proposed defence to the court, or intimate that they wish to challenge the jurisdiction of the court. The calling date is usually assigned a couple of days after that, despite the rules normally requiring a minimum period of 14 days. Again, this is entirely at the Sheriff's discretion and practice varies between Sheriff Courts across Scotland.

Assuming that the illegal occupiers fail to attend Court on the calling date, decree will be granted. Again, to speed matters up, we ask for the order to be granted immediately (known as an immediate extract) which enables Sheriff Officers to serve the order to evict the illegal occupiers immediately instead of waiting a further 14 days - the reduction in time is again at the discretion of the Sheriff.

The law which sets out rules to be applied consistently to all types of removing has recently been changed. A Charge for Removing under Part 15 of the Bankruptcy and Diligence etc. (Scotland) Act 2007 is now required after decree has been granted. The charge will give the illegal occupiers a period of (usually) 14 days' notice before the removing can take place, unless in special circumstances the sheriff dispenses with or varies the 14 day period. In the case of illegal occupiers, we will try to have this requirement dispensed with and, in our experience, this is usually granted.

There are a number of outlays to be considered when raising an action of removing. These include the court lodging dues (currently £65) and Sheriff Officer' fees, which are governed by statute. It should also be noted that landowners rarely manage to recover the expense of raising an action from the illegal occupiers.

It is important to inform your insurer immediately on discovering illegal occupiers on your site and to call the police to enable an incident reference number to be assigned.

Prevention

To avoid illegal occupiers, it is advisable to ensure that vacant properties are suitably secured to ensure that no vehicle access can be obtained. After an eviction order has been granted, many clients arrange for contractors to block entrances to the site with industrial concrete bollards thus avoiding further illegal occupiers arriving.

Our team has wide experience in removing illegal occupiers and has recently removed illegal occupiers from development sites, airports and even garage forecourts.

For more information please contact Philip Knight, Senior Solicitor.

This information is intended as a general discussion surrounding the topics covered and is for guidance purposes only. It does not constitute legal advice and should not be regarded as a substitute for taking legal advice. DWF is not responsible for any activity undertaken based on this information.

Philip Knight

Associate

I work within the Commercial Litigation and Real Estate litigation teams and cover both our Edinburgh and Glasgow offices. I have cases in the Sheriff Court, the Court of Session and the Supreme Court.