A guide to dealing with unlawful occupiers

Trespassers or ‘squatters’ have been a hot topic in the national press with celebrity chefs such as Gordon Ramsay and Marco Pierre White having squatters occupy their empty London restaurants.

James Parratt in our Real Estate Disputes team wrote a piece for CLH Magazine, looking at what property owners can do in the face of unlawful occupation.

“Squatting” or “trespassing” is where someone occupies property without the permission of the owner.

Removing squatters can be expensive and time consuming. A property owner may become criminally liable if they are unaware of what they can or cannot do. Accordingly, property owners should understand their rights when dealing with squatters.

What does the law say?

It is a criminal offence to squat in residential property i.e. houses, flats, and doing so carries a maximum penalty of six months in prison, a £5,000 fine, or both.

Whilst it is unlawful to occupy buildings that are not residential without the owner’s permission, it is not a criminal offence. This distinction is important.

The police may attend a non-residential site occupied by squatters to prevent a “breach of the peace”, although seeking the removal of squatters will be a civil matter.

Squatters may erect a sign which states that the building they are occupying is not residential  and s.144 of Legal Aid, Sentencing and Punishment of Offenders Act 2012 (usually shortened to “LASPO”) does not apply.

A property owner must not attempt to forcibly regain possession of the property or evict squatters. The use or threat of violence against squatters is a criminal offence and could result in incurring criminal liability.

What options are available to remove squatters from my property?

The enforcement of a possession order will remove squatters from non-residential property. There are different routes to obtaining a possession order:

• Obtaining a possession order in the County Court or High Court; or
• Obtaining an Interim Possession Order (“IPO”) and then a final possession order.

Obtaining an order for possession

Applications for an order for possession must clearly set out the circumstances surrounding the squatters’ occupation, the squatters’ details (to the extent they are known) and the grounds that the property owner is seeking to rely upon to obtain possession. Where property owners are unsure of the identity of the squatters, the squatters would be joined to proceedings as ‘persons unknown’.

Property owners are required to serve notice of their application on the squatters. Where property owners are attempting to effect service on ‘persons unknown’, this may be done by attaching copies of the documentation to the property where they are clearly visible, such as on the main door.

Property owners may try to recover compensation or ‘damages’ from the squatters, although practically, it is usually very difficult to enforce a money judgment against squatters.

If the application is successful, an order for possession will be made ordering the squatters to vacate the property by a certain date.

It is necessary to appoint bailiffs to enforce the possession order. The bailiff will warn the squatters to leave, failing which they will return to forcibly remove them.

An application can be made in the High Court in exceptional circumstances, including where there are complicated issues of fact or law, a substantial risk of public disturbance or a substantial risk of serious harm to persons or property. This could include circumstances where the site is particularly hazardous or where there is a significant risk of damage to the property.

Obtaining an Interim Possession Order (“IPO”)

The IPO procedure aims to make it quicker to recover possession although damages cannot be claimed (to the extent they are worth pursuing anyway) and there are a number of procedural hurdles to overcome that make IPOs less attractive than ordinary possession claims. If a property owner wishes to make use of the IPO procedure they must act quickly by making an application within 28 days of learning of the squatters’ occupation.

The first hearing will usually take place quickly, possibly within a week, of the application being issued at the Court. If the Court grants the IPO at that first hearing, the IPO must be served on the squatters within 48 hours.

The squatters then have 24 hours to vacate. If the squatters do not vacate within this timeframe, they will be committing a criminal offence and the police can remove them. Once the squatters have vacated, property owners should secure their property.

A second hearing will then take place to decide if a “final” order for possession should be made.

The IPO route is an effective way of evicting squatters quickly, although the trade-off is that this route is typically more expensive than the alternatives as there are more steps that a landowner has to take to persuade the Court to grant an IPO.

What defences may squatters have to claim for possession?

Squatters may advance a defence or attend a hearing. The following defences may be available to squatters in respect of possession proceedings, dependent on the circumstances:

• The squatters show that they have some right to occupy the property (for instance as a tenant or licensee)
• The property owner does not have an immediate right to possession (for example there is an existing tenancy to a third party)
• The property owner has not served documents correctly
• The property is not solely occupied by squatters.

Such defences may act to delay proceedings, allowing squatters more time to find alternative accommodation or in rarer circumstances, may defeat possession proceedings entirely.

What if the squatters return to the property?

If the squatters return to the property following enforcement of the order, the property owner may apply for ‘restitution’, allowing them to enforce the original order without the need to issue a fresh claim.

What can I do to prevent squatters occupying my property?

• Monitor and attend the property regularly
• Put in place security measures such as alarms and surveillance
• Stop the supply of utilities if the property is vacant
• Have adequate insurance cover in place
• Consider instructing a property guardian to look after the property.

If you have any questions about the topics raised in this article then please get in touch.