All I want for Christmas is... no trespassers!

Santa visits us once a year, but sadly this time of year can also be an opportune time for other types of visitors. Whilst the Christmas/New Year window is usually a restful and rejoiceful time of year, it can sometimes turn into litigation nightmare if squatters take over your property. This is particularly so for commercial landlords who as a result of the pandemic, have seen a lot of businesses fail. This has consequently led to a lot of vacant retail property; a perfect opportunity for trespassers to take possession.

Prevention better than cure

We are urging our commercial property landlords to take robust preventative measures such as installing security, strong shutters, CCTV or even 24/7 security guards if necessary. Landlords should also be smart to disconnect water, heating and other utilities to make it less attractive for squatters to stay. In addition, it would be prudent to check your insurance policy in respect of maintenance and security for unoccupied property.

Legal options

It’s a common misconception that if you have a squatter, that you can simply call the police and report the criminal activity. Police can and do get involved (in certain types of trespass claims) but very often they leave this in the hands of lawyers to fight out as a question of civil law.

The typical route to evict a squatter will involve serving them with a notice to vacate (no prescribed form) and unless entry can be gained peaceably, one would need to instigate possession proceedings. This is a lengthy and expensive process, although it can be expedited through an Interim Possession Order if there are concerning factors, for example, if there is a risk being posed to the general public.

In circumstances where possession hasn’t actually taken place but there is a threatened trespass, there is still recourse available to you in the form of injunctive relief; this would be by way of an application for a quia timet injunction. In other words, where no wrong has yet been committed although it is threatened.

Whether you apply for an ordinary possession proceedings, an interim possession order or a quia timet injunction, will depend on the individual set of circumstances for which specialist legal advice should be sought. Some may be wondering whether possession proceedings and injunctive relief can be bought amidst this moratorium but Practice Direction 51Z was amended to make clear that such actions were excluded from the moratorium protection.

Practical options

Legal options aside, sometimes the best thing to do is to wait and see if the squatter vacates (particularly if they are just passing through and not being completely unlawful) after the Christmas break or landlords may want to employ a private bailiff to see if they can persuade the squatter to leave. However, this can very quickly become risky and a criminal offence, if the bailiff uses or threatens to use violence to gain entry. Bailiffs are trained professionals and will know how best to handle peaceful entry but they will also need to be mindful of social distancing measures.

Other avenues

As mentioned above, the Police have powers in certain types of trespass claims, as do local authorities, to remove trespassers under the Criminal Justice and Public Order Act 1994. For example, if your squatters are having a Christmas party then under the above mentioned Act, the Police can act. In this specific scenario, they would be in a good position to do so given that the current government guidance in relation to the spread of COVID-19 is to draw down on people contact.

In another blog of mine, I have also discuss in detail how the Department for Levelling Up, Housing and Communities has published guidance of the available powers to tackle the formation of illegal and unauthorised camp sites.

Facing unwelcome guests?

Landowners have a right to the peaceful use of their land pursuant to Article 1, Protocol 1 of the Human Rights Act 1998 and we hope that everyone thoroughly enjoys their Christmas break and that they are not faced with any unwelcome guests or litigation in the New Year. If this should arise, BLM's property litigation team is on hand to assist.

Disclaimer: This document does not present a complete or comprehensive statement of the law, nor does it constitute legal advice. It is intended only to highlight issues that may be of interest to clients of BLM. Specialist legal advice should always be sought in any particular case.

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