Urgent possession claims against trespassers on commercial property
In and out!
A landowner who discovers that he has squatters on his property and wishes to remove them must apply to Court for a possession order.
The claim will usually be dealt with by the local County Court, which will list the matter for a hearing when it receives the paperwork. Although the process is much quicker than other types of litigation, this may still not be quick enough for the landowner if the situation is urgent, as squatters on commercial land must be given at least 2 clear days’ notice. But if the squatters are causing substantial damage or committing a criminal offence on the land, such as fly tipping, then even waiting for this short period could make matters significantly worse.
In exceptional circumstances, there is an alternative procedure in the High Court that allows the Court to shorten the time for service of the claim form. If the Court agrees with the landowner that the circumstances are exceptional, the hearing can even be the same day that the claim is issued.
Criteria for High Court procedure
In order to meet the criteria for a High Court application, there must be exceptional circumstances. The landlowner must file a certificate of urgency stating his reasons at the same time the claim is issued. The certificate must also contain a statement of truth.
The Civil Procedure Rules set out the circumstances that are deemed “exceptional”. For a trespass claim, this includes:
- A complicated dispute of facts;
- Complicated points of law;
- A substantial risk of public disturbance, if the claim is against trespassers; and
- A substantial risk of serious harm to persons or property which requires immediate determination, if the claim is against trespassers.
If the High Court disagrees that the claim is sufficiently urgent, it will either strike out the claim or transfer it to the local County Court. Either way this will cause delays and the landlowner will not recover the costs. It is therefore important to be clear on the facts and the reasons for the urgency before deciding whether the situation fits the High Court criteria.
The Claim Form and Evidence
The landowner must also submit a claim form and particulars of claim to explain to the Court why he is entitled to possession. The information must include:
- Details of the landowner’s superior interest in the land;
- What is known about how the trespassers came to be in occupation;
- The grounds under which possession is claimed;
- Details of the person or organisation in occupation, if known; and
- Confirmation that the land is being occupied without the landowner’s permission.
If possible, photographs can be useful evidence.
As soon as the landlowner becomes aware of the squatters, he should start to compile this information. This will make it easier for the proceedings to be drafted and issued as quickly as possible. If the property is insured, the insurers should also be informed if the landowner will be looking to make a claim for damages.
Service on Persons Unknown
If the squatters are not known to the landowner, the Court documents can simply state that the occupiers are “persons unknown”.
The Civil Procedure Rules have special rules for service on persons unknown. The documents must be attached to the property in a place clearly visible, such as the front door if there is a building, and must also be placed prominently around the property.
Landowners will usually instruct bailiffs or process servers who are familiar with the Civil Procedure Rules to serve the proceedings on their behalf, to ensure that service is valid.
Order and Writ of possession
If the landowner is successful, the Court will make an order for possession and will also issue a writ that entitles the landowner to instruct bailiffs to attend the premises to clear the site and retake possession. Again, the process of obtaining a writ of possession will be slower if the High Court procedure cannot be used.
The landowner may also wish to request that the police attend the site to assist with removing the trespassers from the property.
Once the trespassers have been removed from the land, the property will need to be secured properly in order to prevent any re-entry. Advice should be sought on temporary and permanent security, and the insurers should be informed that the property is once again vacant.
- If you discover squatters on commercial land, be prepared so that you can act swiftly.
- If there is criminal activity or other good reason why the matter should be expedited, take full details so that you can consider whether the accelerated procedure is available.
- Be prepared to provide the information to your legal advisers so that they can draft and issue the claim.
- Take photographs of the site if possible.
- Contact the police immediately and keep them informed of your progress with the Court. Once the writ of possession is obtained the police will then be ready to assist if needed.
- Demonstrate that service will be effected as soon as possible.