This article was originally written for Property Law Journal, March 2016
Many property portfolios have vacant units from time to time; empty buildings awaiting redevelopment or large open areas such as carparks, or yards, without access restrictions. Such spaces are vulnerable to occupation by trespassers. In this context, a trespasser is a person who has entered and remained on land without the consent of the person entitled to possession of it. Trespassers take various forms from travellers to anti-capitalist/anti-fracking protestors, from homeless people to shop squatters.
Sitting back and doing nothing for a period, while the property is not required and in the hope that the occupiers move on, may be a tempting option. However, there is clear potential for damage to be caused to the property, the number of trespassers to increase and nuisance to be caused to neighbouring occupiers. Sometimes the trespassers themselves are exposed to health and safety risks.
In many cases the trespassers run their business from the land which results in debris being left behind (even including asbestos). If the properties are not connected to a power supply, local supplies are sometimes tapped. Clearly lack of proper sanitary arrangements can also mean a health and safety hazard is quickly created. From a legal perspective, if consent is actually given, even verbally, for a stay, then there is a possibility that an implied tenancy could be created, significantly impacting on the ability of the landowner to get back possession at a future date.
As such, most property managers want to take swift action on learning that trespassers are in occupation. For national portfolio owners, the difference between the regimes for recovering possession in England/Wales and Scotland can be surprising.
England and Wales
Under the Criminal Law Act 1977, it is an offence to use force or violence to gain entry and remove trespassers. Whilst many “bailiff” companies offer a service for removal of trespassers without using the Court route this is considered a high risk strategy and not one that can be recommended.
The correct procedure is to get a Court Order for possession. In England and Wales, this procedure is governed by Part 55.2.b of the Civil Procedure Rules (the CPR).
Starting the Claim
Claims for possession are started in the County Court, and only move to the High Court in exceptional circumstances. These exceptional circumstances are not related to the value of the property but are instead to do with complicated disputes of fact, points of law of general importance or claims against trespassers where there is significant risk of public disturbance.
The claim is made on form N5 and has to be issued at the County Court with a fee. The issue fee is currently £280 but is likely to rise to £355 shortly. In years gone by, most County Courts offered an “over the counter” service, meaning a return date could be obtained immediately. This is rare now, and so the papers are generally posted to the County Court with a request for a return date and in the hope that the Court administrator appreciates the urgency involved, while at the same time calculates time for returning the papers (by post) and allowing the sufficient period for valid service before the hearing. This can be a fine line.
Historically, possession proceedings had to be issued at the Court which had jurisdiction for the property in question. While that is no longer the case, the delay in a Court transferring the proceedings to the local Court usually dictates that issuing in the right Court remains the preferable course of action. Particulars of claim and evidence in the form of witness statements must also be filed and served with the Claim Form.
When completing the claim form, the claim is usually brought against ‘persons unknown.’
Definition of Premises
Care needs to be taken here to identify the land, for example, is it an entire building, or is it just a certain floor or unit that the trespassers are occupying? A plan should probably be exhibited.
Title to the Premises
The Claimant has to prove title, and that title must give him an immediate right to possession of the property. This can cause issues, for example, where there is a lease in place, the tenant (not the landlord) should be the Claimant. If the property is empty because the tenant has walked away or is subject to an insolvency regime, there may be no appetite or indeed ability to get the tenant involved in the proceedings. In such a case, the lease may need to be terminated (eg by forfeiture or surrender) before the claim can be brought. Another situation may be that the Claimant has just purchased the property but the registration has not been completed at the Land Registry, and so the Claimant cannot readily prove his title.
The witness statement should also set out the background to the unauthorised occupation, including how the occupation was discovered and particularly confirm that no consent has ever been given to the occupation.
Serving the Documents
Once the Court has issued the claim form, it will set a hearing date. This can vary from court to court, depending on how busy they are but usually it is about one to two weeks’ wait. In a possession claim against trespassers the Defendants must be served not less than two clear days (commercial land) or five (residential) before the hearing.
Depending on the location, serving can be onerous. Where there are several trespassers, serving in several ways is often the safest course of action. These methods can include placing all the documents in a clear envelope and fixing them to the door, posting them through the letter box, handing them to adults present, or, where there is no door, it may be necessary to fix several stakes to the land in various places and attach the envelopes of documents to the stakes. Process Servers can be instructed to carry this out.
It is critical that whoever serves the papers must prepare an affidavit of service, and that a certificate of service is then filed at Court before the hearing. A hearing can easily be adjourned on the basis of failure to serve properly, especially where the defendants do not attend.
At the hearing, the Court will usually grant the Order for Possession. Occasionally, if the Defendants or their representatives appear, the Court may be persuaded to adjourn or order directions but this is rare.
Once the Order is sealed, it needs to be enforced. The usual method is to pass the sealed Order to the Court Bailiff for enforcement. The Court Bailiff will have plenty of experience but may already have a lengthy list of properties to be repossessed and sometimes it is difficult to get priority. There are also occasions when the Court Bailiff is too understaffed to deal – for example where there is likely to be a violent protest to the repossession. The police can be asked to attend, but if the Claimant can afford it, the best course is to transfer the proceedings to the High Court for enforcement (a Court counter stamping exercise) and then engage the services of the High Court Enforcement Officers. This means speed, plenty of manpower, equipment and so on, however it can be a very expensive exercise.
Interim Possession Order Regime
The CPR does provide for a quicker method of obtaining a Possession Order, known as the Interim Possession Order (“IPO”) regime.
The service requirements explained above are not required for the grant of an IPO, so obtaining the Order can be quicker. The Court will fix an appointment for a hearing that is not less than three days after the application is issued. If an IPO is ordered, it is then to be served within 48 hours of the Court and the trespasser must leave within 24 hours of service, or face arrest.
This IPO will expire on the day of the main hearing, where usually a final Possession Order will be granted.
The Claimant may be asked to undertake to the Court that if the final order is not later granted, he will allow the Defendants back into the premises (having kept them vacant in the meantime) and pay them damages. If these undertakings aren’t given, the Court will take it into account when making the decision.
The general view is that the police are rarely interested in arresting anyone for breach of an IPO, maintaining that these disputes are civil matters. As such, the benefit of the time saving is lost by the lack of any genuine remedy if there is a failure to comply. There is also the disadvantage of having two Court hearings.
Starting the Claim
Witness statements are not required in Scotland which speeds up the process considerably. All that is required is the summary cause summons together with an inventory of productions.
The summons briefly narrates the date the travellers commenced occupation, the number of vehicles (if known), the basis upon which the pursuer is entitled to sue and that consent has not been granted for their occupation.
The summons is lodged at court along with an inventory of productions which usually includes the pursuer’s title to raise proceedings (such as a lease or land certificate from the Registers of Scotland). Like in England, we usually include a plan to ensure there is no dubiety.
The Court Process
The process of obtaining an eviction order in Scotland is a relatively simple procedure requiring two court hearings. In the first instance, it is possible to 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. These hearings normally take place the same day and in most cases this hearing will happen in private before the Sheriff in their chambers. Given the wide discretion to the Sheriff, eviction orders can be granted the same day but this is rare.
Serving the Documents
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 Sheriff Officers are instructed immediately after the first hearing and service is usually carried out on the same day (depending on location). The Sheriff Officers then produce a certificate of service which is lodged in court with the principal summons prior to the calling date.
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 – for example, some Sheriff courts will only hear such cases in the weekly heritable court which delays matters considerably. However, in most cases the timescale from receiving instruction to eviction is usually 5 days.
Assuming that the illegal occupiers fail to attend Court on the calling date, decree will be granted. To speed matters up, it is possible to 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 eviction has recently been changed – it was intended to protect residential tenancies but applies to the eviction of illegal travellers. A Charge for Removing under Part 15 of the Bankruptcy and Diligence etc. (Scotland) Act 2007 is 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, it is normal to have this requirement dispensed with and, in our experience, this is usually granted.
In the majority of cases, the illegal occupiers can be evicted on the same day that the hearing takes place.
There are a number of outlays to be considered when raising an action of removing. These include the court lodging dues (currently £76) and Sheriff Officer’ fees (around £250 plus VAT), which are governed by statute.
If the illegal occupiers fail to remove after decree has been granted Sheriff Officers will need to employ the services of a tow truck(s) which can add to the expense.
The difference between the jurisdictions
As we have shown, the regime governing the removal of illegal occupiers in England and Wales is quite different to that north of the border. Total time from instruction to enforcement is more like 2-3 weeks compared to around 5 days in Scotland.
The process in the English and Welsh courts is more formal, and the Practice Directions to the Civil Procedure Rules must be strictly adhered to, to ensure that the courts have no reason to postpone or dismiss the hearing. In Scotland, the courts are far more discretionary with regard to reducing the time periods for notices and calling dates. Further, the initial court fee in England and Wales is higher than in Scotland, though in both regimes, it is unlikely that claimants will ever recover these costs and undoubtedly other costs will be incurred.
In Scotland, witness statements do not need to be provided meaning that proceedings can be raised quickly. In addition, Sheriff Officers accept same day instructions reducing timescales.
Quite simply the process in Scotland is both quicker and cheaper.
Prevention- wherever you are
To avoid illegal occupiers in the first place, it is advisable to ensure that vacant properties are suitably secured and open areas are height/width restricted so that no vehicle access can be obtained. After recovering possession, many property managers arrange for contractors to block entrances to the site with industrial concrete bollards this avoiding further illegal occupiers arriving, or even keep up manned security for a period while the trespassers move out of the area.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.