KDL Law has recently acted in successfully obtaining a possession order against a squatter who had taken up residence in the underground carpark at a residential development. The matter was complicated by the fact that the parking spaces themselves were demised to the leasehold flat owners, and it was critical to the success of the claim that the landlord client’s rights were carefully set out so that the judge could make the appropriate possession order which could be enforced by the client.

This Legal Update outlines the legal options and processes where a property owner is faced with the challenge of squatters on their land or in their premises.

Squatters in residential property

Since 01 September 2012, squatting in residential premises has been a criminal offence (under Section 144 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012). Therefore, in such cases, the police can be called to remove the squatter. However, due to limitations on public resources, the availability of local police forces able and willing to assist with complaints of squatters will vary greatly across the country. For that reason, for the most part owners even of residential property will need to seek redress from the Courts to remove squatters from their premises.

Possession Proceedings

The procedure for possession against a squatter is governed by the Civil Procedure Rules (CPR) Part 55 and the accompanying Practice Direction (PD) 55A. Under CPR Part 55, there are two routes available in cases of squatters, either -

1. The Standard procedure - this is the most common procedure adopted; or

2. The Interim Possession procedure - this is a more procedurally complex process.

These procedures are only available where the squatter is truly a trespasser and has never had the landowner’s permission to occupy the premises (so will not apply, for example, where a tenancy or licence has come to an end).

Standard procedure

In most cases, the claim for possession will be commenced in the County Court.  Once issued, the Court will typically list a hearing date and the possession claim must be served upon the squatter. Where the claim is against ‘Persons Unknown’, as is common in squatter cases, the claim together with any accompanying documents/witness evidence must be served on the squatter either by :

• Attaching copies to the main front door or some other part of the land so they are clearly visible, and if practicable inserting those documents in a sealed transparent envelope addressed to ‘The Occupiers’ through the letterbox; or

• Attaching copies in sealed transparent envelopes addressed to ‘The Occupiers’ to stakes, which are to be placed in clearly visible places on the land.  In the example referred to above the notices were posted at the entrance to the car parking area, around the carparking area and to the trolley that the squatter was using as a home within the parking area.

Certificates of service to confirm service must be filed with the Court.

The squatter must be served within strict timescales before the hearing date :

• For residential property - service must take place no less than five days before the hearing;

• In any other case - service must take place no less than two days before the hearing.

If the case is properly prepared and the squatter has no defence to the claim, the judge will likely make a possession order ‘forthwith’ requiring the squatter to leave the property immediately. It is not necessary for a squatter wishing to challenge the claim for possession to file any defence in advance of the hearing, and they may simply attend and put forward a defence in person. In that case, the Court is likely to adjourn the hearing for a later date with appropriate case management directions, including a requirement for the provision for a written defence by the squatter.

Where a possession order is made and the squatter fails to vacate in accordance with it, the possession order can be enforced by an eviction, which will either take place by the County Court bailiff following a warrant of possession or, more typically where there is a need to remove the squatters urgently, through High Court Enforcement Officers. Note that there is no requirement for permission to enforce a possession order in the High Court where the order is made against squatters, although a N293A Certificate must be sealed and signed by the County Court, before a writ can be issued by the High Court allowing the High Court Enforcement Officers to carry out an eviction.

Interim possession procedure

Alternative to the standard procedure above, the interim possession procedure is intended to deal with squatters more quickly, but is only available in certain circumstances, namely where :

• The claim is for possession only (so no claim for money) of premises (not land);

• The landowner has an immediate right to possession throughout the period of occupation;

• The claim is made within 28 days of the date the landowner first knew or ought reasonably to have known that a squatter was in occupation.

The claim is issued in the County Court together with the appropriate application in form N130 and any relevant witness evidence. The Court will fix a hearing date when issuing the claim, which must be as soon as possible but not less than three days after the claim is issued.

Within 24 hours of the claim being issued, the squatter must be served with all the documents issued and, for their completion, a blank copy of the defendant’s witness statement, by attaching copies to the main front door or some other part of the premises so they are clearly visible, and if practicable inserting those documents in a sealed transparent envelope addressed to ‘The Occupiers’ through the letterbox. Certificates of service to confirm service must be filed with the Court before the hearing.

The interim possession procedure is a two-stage process. At the first hearing, the judge will decide whether to make an interim possession order (IPO), which requires the squatter to vacate the premises within 24 hours of service of the order. The judge will have to consider whether the landowner is willing to give undertakings, to reinstate the squatter if the Court later decides the landowner as not entitled to possession, and not to damage the squatter’s property or the premises themselves and not to grant any other person a right of occupation before the claim is finally decided.

If an IPO is granted, it must be served on the squatter within 48 hours, in the same manner as above. If the squatter does not leave within 24 hours of service of the IPO, or if they return to the premises within a year, they may be arrested and subject to a fine and/or imprisonment.

A second hearing will then be listed for the Court to decide whether to make a final possession order.

Injunction

In some instances, it may be appropriate to apply to the Court for an injunction (see here ) either to prevent a squatter from entering land or to prevent them from returning. There are complex rules that apply in such cases, particularly where the names of the squatters are unknown, and so such a remedy is outside the scope of this Legal Update. However, prior to progression of any application advice should be taken on whether an injunction would be available, either as an alternative to or in conjunction with a possession claim against squatters.

Conclusion

It is inherently distressing to find there are persons in your property with no legal right to be there. Thankfully, with the right advice and assistance, such a situation can be handled fairly swiftly. However, it is imperative that legal advice is taken to ensure that there are no problems which could delay possession ultimately being recovered, particularly if there are any complicating factors including with identifying ownership of the relevant structure or area occupied by the person(s) unlawfully present.

If you require assistance in removing occupiers with no legal right to be in your property, or if you have any queries in relation to this week’s Legal Update, please feel free to get in touch with a member of the  team on 01435 897297 or info@kdllaw.com.

Disclaimer

This Legal Update describes the position in law as at the date of this article and care should be taken to note any subsequent amendments to the position as set out above.  The Legal Update is provided free of charge for information purposes only; it does not constitute legal advice and should not be relied on as such. No responsibility for the accuracy and/or correctness of the information and commentary set out in the article, or for any consequences of relying on it, is assumed or accepted by any member of KDL Law or by KDL Law as a whole.

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