Introduction

The immediate reaction of most landowners upon discovering that trespassers have invaded their property would be to call the police or take direct and forceful action to evict the trespassers themselves. Unfortunately trespassing on commercial property is not of itself a criminal offence, and landowners pursuing “self-help” remedies risk committing one or more offences themselves. At present the only viable option available to landowners in this situation is a civil action for possession of the land.

Depending on the situation, possession proceedings can take months or even years. Fortunately there are specific procedures for eviction of trespassers from non-residential land, which are designed to make the process as streamlined as possible. In most cases the process takes between one and two weeks from the date of the claim form.

Procedure

As soon as a trespass has been identified, the landowner should attend the site and ascertain how many trespassers there are; where on the land they are sited; and how they gained access to the land.

It is advisable to inform the trespassers that Court proceedings are being initiated and ask them to leave. It is also worth notifying the local police force of the trespassers’ presence, although their powers to assist are limited.

In most cases the claim will be made in the County Court nearest to the site. It will set out the landowner’s right to possession and include a witness statement giving details of the occupation.

For commercial land, the hearing date must usually be at least two days after the date on which the trespassers are served with the notice, although the Court will allocate a hearing as soon after that date as possible. The timescale may be shortened if there is a risk of assault or serious damage to property by the trespassers.

It is important to serve the claim on the trespassers as soon as feasible, ideally on the same day the claim is issued. The procedure for serving the claim is highly prescriptive and must be adhered to; some organisations choose to employ a process server to ensure that the conditions of service are met. It is good practice to obtain a witness statement from whoever serves the claim, in order that any queries regarding service raised at the possession hearing may be answered.

At the possession hearing the trespassers are given an opportunity to defend their occupation of the land. If there appears to the Court to be a genuine dispute it will give directions to prepare for a full hearing. In cases of short-term trespassers on commercial sites, however, there is usually no genuine argument that can be made, and it is common for the trespassers to fail to appear altogether. If there is no genuine dispute and the Court is satisfied that the correct process has been followed it will grant an order for possession.

Once the order has been granted, the landowner can either:

  1. Employ the local County Court bailiff to attend the property. The bailiff will attend the site, inform the trespassers of the order and give them at least 24 hours’ notice to clear the site. If the trespassers are still at the site after the notice period the bailiff will clear the site. This is by far the cheapest option, but may not be the fastest as the speed of the enforcement is dictated by the bailiff’s workload; or
  2. Transfer the matter to the High Court and engage a High Court officer to evict the trespassers directly. An order for transfer of the case can be granted without a hearing at the High Court, and in some cases the trespassers can be evicted on the same day that the order is granted. However, the enforcement officers’ services are not cheap, especially where there is a large group of trespassers requiring the presence of more than one officer.

As soon as the trespassers have left the landowner should secure the property to prevent re-entry.

The future of eviction?

The recent Legal Aid, Sentencing and Punishment of Offenders Act 2012 has criminalised trespass in residential property. As a result, home-owners will shortly be able simply to phone the police to evict trespassers from their homes. The Act does not apply to commercial premises as yet, although there is a possibility that it will be extended. If that happens, commercial property owners will be able to evict trespassers much more quickly and cheaply. However, at present the existing civil procedure remains the best way legally to evict trespassers from non-residential property.