There is never a good time to find out that your land is being occupied by a trespasser and few expect it to happen at all.  Trespass cases have become increasingly complex as and there appears to have been a rise in the number of ‘professional trespassers’.  A trespasser is someone who enters onto property without lawful authority or permission to do so from the owner or person with an immediate right to occupation of the property.

So, as the rightful occupier or owner of the land, what should you do if you find yourself needing to evict a trespasser?

1. Act quickly

It is recommended to seek legal advice as soon as you become aware of the presence of trespassers for the reasons set out below.

2. Do not force entry

It is a criminal offence for any person to use or threaten violence for the purposes of obtaining entry into premises when they are aware that there is someone present who is opposed to entry (Section 6 of the Criminal Law Act 1977).  The best course of action is to obtain advice on whether entry can be gained peaceably from a legal adviser or High Court Enforcement Agent.

3. Be careful of inadvertently granting permission for a trespasser to remain

There is a risk that allowing squatters to remain in the property for a couple of days could be construed as granting additional rights to squatters, which could make eviction a more difficult process.  Squatters may make promises to leave within a certain amount to time, which can potentially result in the landowner granting a licence inadvertently.

4. Start gathering evidence

Preparation is key.  In the long run, it is more time and cost effective to compile a pack of evidence for your legal adviser to review from the outset.  Such information should include information as to whether the land is residential or commercial, details of ownership of the land, your interest in the land, a plan of the land, a clear plan showing where the trespassers are located, photographic and video evidence, any details known about the trespassers, a copy of any lease or licence documentation (where relevant), and a timeline of events.

5. Self-help or court proceedings?

As part of the evidence gathering, it is usually a good idea for a High Court Enforcement Agent (“HCEA”) to visit the site to carry out an inspection.  In respect of commercial land (in other words, land which is in no part let for residential purposes), it might be the case that the HCEA can take steps to evict the trespassers on your behalf without the need for a Court order.  This can result in significant time and cost savings.  If Court proceedings are required (because the HCEA advises that a Court order is necessary in that particular case), the evidence gathered as part of the inspection would also be useful for those Court proceedings.  In the case of residential property, it may be that the trespassers are committing a criminal offence and the police can exercise their powers to enter and search premises and make an arrest.  However, advice is recommended in the first instance.

6. So you need to go to court…

With the wealth of evidence gathered, you (or your legal representative) can proceed to file the Claim Form and Particulars of Claim.  The rules concerning trespass cases are set out in Part 55 of the Civil Procedure Rules.  Usually, you would seek a possession order from the Court (potentially coupled with an injunction if you fear that the trespassers will return).  With squatters, there is also the possibility of seeking an Interim Possession Order which is a faster process but can only be used if certain conditions apply.

There are a number of points to consider:

• Service of proceedings

Once issued by the Court, the Claim Form, Particulars of Claim and Witness Evidence need to be served on the trespassers at least five clear days before the hearing date in residential cases, and at least two clear days in non-residential cases.  In most cases, claims will be against ‘persons unknown’ and will need to be served via the traditional methods (i.e. affixing copies of the documentation to the property, posting copies in a transparent envelope via a letterbox, and affixing to stakes in the ground).  In some cases, you might also seek permission from the Court to serve via alternative methods, such as social media or email. 

• Hearing

There is no requirement for trespassers to serve a Defence on you prior to the hearing.  In most cases, trespassers will not want to be joined to proceedings due to costs repercussions.  However, it is common for trespassers (or their representatives) to attend the hearing and make their arguments in person which may result in an adjournment of the proceedings.  The risk of those arguments being successful can be reduced if the Claimant has prepared properly for the hearing. 

7.  I have a possession order, now what?

This is not the end of the story as you will need to enforce the order.  A possession order may need to be followed by application for a warrant for/writ of possession (depending on whether the proceedings are in the County Court or the High Court).  Once this is granted, the HCEO can proceed to enforce the possession order and remove the trespassers from your land.

Action Points

Ultimately, prevention is better than cure so all landowners should consider what measures they can take to secure their land to prevent trespassers entering onto the land or property, such as the erection of fencing or the locking of gates.  However, where preventative measures have not worked, the process of obtaining possession from trespassers is a complicated one and requires careful consideration.  Therefore, landowners should ensure that they are well prepared at the outset, diligent with their evidence gathering and consult with their legal advisers as soon as possible. 

Please do not hesitate to contact Sam Lear or another member of the Real Estate Disputes team for specific advice.  This briefing note is only intended as a general statement of the law and is not a substitute for legal advice on the specific circumstances of your matter.

This article was written by Samuel Lear. For more information, please contact Sam on +44 (0)1242 246374  or at samuel.lear@crsblaw.com.