Summary and implications
Protests have been making the news recently and occupation of property by protestors is a growing problem for landlords and tenants.
The laws of England and Wales give everyone the right to protest. However, the law also recognises that, just as protestors have the right to carry out a legitimate and lawful protest, property owners and occupiers also have the right to possession of their property.
Successfully dealing with protestors will involve taking practical, as well as legal, steps to deal with the situation. In the face of a protest, landlords and occupiers should remember that:
- The police only have limited powers to deal with protestors who are occupying a private property (rather than a public space);
- Landlords and tenants will usually have to rely on their civil law remedies against protestors and other unauthorised occupiers;
- The usual civil procedure for claiming possession of land can be lengthy and slow. However, owners and occupiers can use an accelerated possession procedure or an injunction to deal with urgent cases.
Options for a landlord or occupier dealing with protestors
Responding to an occupation by protestors will involve a combination of practical and legal steps.
Many protest occupations are brought to an end by negotiation and the legal options for evicting protestors are usually a last resort, to be used when attempts to find an amicable solution have failed.
Self-help – landlords must be careful not to use force
“Self-help” in the context of trespass on land normally means instructing private bailiffs or security staff to use reasonable force to physically remove trespassers.
This is almost always inappropriate when dealing with protestors. Leaving aside the obvious potential legal and reputational risks involved in starting a physical confrontation with protestors, the Criminal Law Act 1977 makes it an offence to use or threaten violence to enter property if there is someone on the property who is opposed to entry. Importantly, this includes violence to property.
However, private security teams can play a vital role in preventing protestors from entering a property in the first place or preventing protestors moving from an occupied part of a property into other, unoccupied, parts (and in preventing re-occupation after eviction).
Involving the police: they have limited powers to deal with protestors on private property
Trespass is a civil wrong, not a criminal offence, and the police only have limited powers to deal with protestors on private property. The issue of prioritising police resources (which are also limited) can also be a factor in the approach taken by the police.
However, the police do have the power to act in certain defined circumstances – for example, to deal with aggravated trespass on land in the open air under the Criminal Justice and Public Order Act 1994. The government has stated that it is reviewing whether these powers are sufficient, with the aim of extending them.
Court proceedings – landlords may need to use a court enforcement officer if the protestors don’t leave
If protestors (or other trespassers) refuse to leave voluntarily then it will normally be necessary to apply to court for an order for possession of the property.
Normally, the landlord or tenant should allow at least two clear days between the date the proceedings are served on the trespassers and the date of the court hearing for possession. This rises to five clear days if the claim involves residential property.
If the trespassers refuse to leave voluntarily once a possession order has been made, the landlord or tenant must enforce the court order. This is carried out by authorised court enforcement officers. Evicting large groups of protestors and/or protestors in tunnels or tree-houses can be a major undertaking requiring the use of specialist enforcement teams, complex logistical arrangements and close co-operation with the police who may need to play a supporting role.
Urgent situations – landlords can use emergency court powers if there are safety concerns
The normal possession procedure can take several days or weeks to reach a conclusion. Occupation by protestors can give rise to issues that need to be resolved urgently. For example, safety concerns such as overcrowding or the unauthorised occupation of an inherently dangerous site.
It is also possible to obtain urgent relief from the court. For example, asking the court to use its discretion to shorten the normal periods of service mentioned above1. Another way is to obtain an interim injunction requiring the trespassers to leave the land pending a full hearing of the matter2.
Parliament Square protest
The Mayor of London, Boris Johnson, successfully obtained a possession order and an injunction against the peace campaigner, Brian Haw earlier this year. Mr Haw, who died recently, was evicted from Parliament Square Gardens, which he had occupied for 10 years and moved to the pavement on the east side of the Square. The judge in the case said that camping was incompatible with the function, lawful use and character of Parliament Square Gardens and “inconsistent with the proper management of the area as a whole”.