Trespassers: How to Recover Possession Effectively

As the weather improves, unlawful squatting on private land typically becomes more of a problem for landowners, their agents and local authorities. Here we summarise the options available to a landowner to remove trespassers from land and advise on how to do so as cheaply and quickly as possible.

20/04/2010

As the weather improves, unlawful squatting on private land typically becomes more of a problem for landowners, their agents and local authorities.  Summarised below are the options available to a landowner to remove trespassers from land, with our advice on how to do so as cheaply and quickly as possible.

There are four main options:

(i) Persuading the police to take action

Under the Criminal Justice and Public Order Act 1994 (“CJPOA”), the police have powers to remove trespassers from land.  The main power is under Section 61, which enables the police to direct the removal of trespassers where the landowner has asked them to leave and they have refused.  The police can make a direction if there are six or more vehicles on the land, or if any of the trespassers have either caused physical damage or behaved in a threatening, abusive or insulting manner.  Section 62 gives the police an ancillary power to seize and remove vehicles.

These are powers enjoyed by the police; they do not impose a duty on the police to take action.  It is always worth liaising with the police at the outset, especially if there are a large number of trespassers, to see if a problem can be averted.  However, the police are likely to take the view that the trespass is a civil matter for the landowner to resolve.

(ii) Enlisting the help of the local authority

Under Sections 77 and 78 of CJPOA, local authorities have similar powers to those enjoyed by the police.  Section 77 gives the Council the ability to make a direction that trespassers have to leave land, and it is a criminal offence for trespassers not to comply with such a direction.  Under Section 78, the Council can apply to the Magistrates Court for an order requiring the removal of trespassers and their property from land.

Whilst these powers sound helpful, it is difficult to imagine circumstances in which a local authority would have the resource or inclination to use these powers on behalf of a private landowner. 

(iii) Common law remedy of “self help” (otherwise known as "sending in the bailiffs")

At common law, a private landowner has the right to invoke the remedy of “self help” to remove trespassers from land.  In practice, this involves instructing “certificated bailiffs” (i.e. bailiffs approved by the local County Court) to act as the landowner’s agent with the objective of persuading the trespassers to leave the land, without a court order having been obtained.

Certificated bailiffs are skilled at persuading trespassers to vacate land.  There are bailiff companies who specialise in this particular activity, and they can often be mobilised to attend the site within 24 hours of being instructed.  However, their services do not tend to be cheap and because of the legal limitations on what they can and cannot do, this route cannot give a landowner certainty in terms of recovering possession.  It is also essential that the bailiffs act within the strict confines of the law, bearing in mind that retaking possession of land without a court order can constitute a criminal offence where someone is in occupation who objects to possession being retaken.  Any bailiffs instructed will be acting as the landowner’s agent, and so there is the further risk of the landowner being held liable for the bailiffs’ actions, if the bailiffs are accused by the trespassers of having used excessive force.

This option needs careful consideration on a case by case basis to ensure it is employed safely and appropriately, and it is a good idea to take initial legal advice on its suitability.  This is especially so for public bodies, who in our experience prefer to obtain a court possession order.

(iv) Court proceedings

There is a bespoke procedure under the court rules (Part 55 of the Civil Procedure Rules) to allow landowners to obtain court orders against trespassers quickly and cheaply.  In the case of non-residential land, only 2 days notice needs to be given to the trespassers before a possession hearing can take place (5 days for residential property).  A possession order to take effect forthwith should be obtained at the hearing, and at that point the court bailiffs can be instructed to carry out an eviction to remove the squatters, which they will do.  Once a possession order is obtained, there is normally a wait of a few working days before the eviction takes place. 

In cases of urgency where it is essential that trespassers are removed immediately (e.g., where a property is about to be sold), there is an even more accelerated court procedure available.  This involves obtaining an “interim possession order” which is an urgent order made by the court almost immediately after proceedings are issued and served.  The interim order requires the trespassers to leave it is a criminal offence for the trespassers to remain on the land once the interim order has been obtained, and they are liable to be arrested or evicted by the bailiffs if they do so.  There is then a second hearing to convert the interim order into a final order.  The fact that this procedure involves two hearings means it is more expensive than the standard procedure, and is therefore best suited to cases of real urgency.

What can Bevan Brittan offer?

Our Property Dispute Resolution team is well versed in obtaining possession from trespassers cheaply and quickly.  If trespassers move onto your land, the first thing you should do is contact us.  We will advise you on your options and the best way to deal with the particular problem you face.  Our specialist team offers the following services:

  • a dedicated precedent bank to enable us to handle your case quickly and efficiently;
  • a fixed fee service to give you certainty over costs at the outset;
  • the capacity to “drop everything” to deal with the instruction immediately;
  • a tried and tested network of reliable bailiffs and process servers;
  • a 100% success record against trespassers;
  • the ability to represent you at court hearings nationwide; and
  • the ability to act as an “overflow” service for busy in-house legal or property teams.

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