Overcoming unwelcome occupiers

Michael Walsh examines the ways in which land owners can protect their land between trespassers taking up possession and the Court making an order

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There has been a recent spike in groups purporting to protest against homelessness and housing policy by breaking into and occupying high-value properties, predominantly in London. Such occupations grab the headlines and those participating in the trespass believe it furthers their political agenda. For example, a group calling itself Autonomous Nation of Anarchist Libertarians has moved around Westminster and Belgravia in recent months, occupying empty commercial and residential properties valued at tens of millions of pounds. 

The tactics they use to increase their profile appear to be working, with major national newspapers reporting on their occupation. On 22 February, The Sun led with “Squatters’ sights: Squatters move into £15m London mansion” and the Daily Mail with “Squatters move in as the Queen’s neighbours: Activists seize £14.2m home overlooking Buckingham Palace.”

The photographs taken after the trespassers are evicted illustrate the scale of the damage: spray-painted walls, rubbish and detritus left behind and landowners left with a large security, legal and cleaning bill. 

I have written before about how landowners and their advisers can protect themselves from such incursions and recover possession quickly (Planning for protests, EG 16 May 2016, p84). However, occupation of properties even for a day or two can cause irreparable damage. The type of property being occupied in super-prime central London means that there are often valuable fixtures, fittings and chattels in situ. 

What can the landowner do while lawyers are preparing a claim for possession? Frustrated owners often ask whether they can send in the heavies to bring the occupation to an end, to which the answer is always “no”. But what rights does the landowner have to self-help?

Common law rights

As a general rule, where land is occupied by trespassers, at common law the landowner is not obliged to seek the court’s assistance in evicting them: McPhail v Persons Unknown [1973] Ch 447. 

Many High Court enforcement officers advise landowners to take back possession of open land under the common law, without the assistance of a court order. However, this is only recommended where open land is being occupied by individuals, who may, for instance, be fly tipping or carrying out some other activity on the land.

Criminal sanctions

The position when buildings are being occupied is not as straightforward. It is common for trespassers to post a notice on the door of the property they occupy stating that the provisions of section 144 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Laspoa), which make it a criminal offence to trespass in residential property, do not apply because the subject property is commercial. The notice usually goes on to state that the property is their home and threaten the reader with prosecution if an attempt is made to enter, relying on Part II of the Criminal Law Act 1977 (“the 1977 Act”).

If, in fact, the trespassers are wrong and the property is not commercial but empty residential premises instead, the police can enter and arrest them for the criminal offence created by section 144 of Laspoa. However, once again, this remedy relies on the co-operation and assistance of the police, which is not always possible. 

Section 6 of the 1977 Act makes it a criminal offence to secure entry into premises, without lawful authority, by use of threat of violence if there is someone on the premises who is opposed to the entry to which the violence is intended to secure. There is an absolute defence to this offence if a displaced residential occupier evicts the trespassers. However, this section understandably deters other landowners from self-help because of the potential criminal penalties directed to those who enter the property. 

Where trespassers are in occupation of properties containing valuable works of art, fixtures or other chattels, landowners will naturally be concerned for the security of those items pending the determination of the claim for possession, however short that period may be. 

If agents of the landowner are unable to secure entry into premises without using force and there is concern for items of value in the property, it may be possible to obtain an interim injunction permitting agents of the landowner entry. CPR 25.1(c)(i) allows the court to grant an interim injunction for the “detention, custody or preservation of relevant property”, which includes land and is the subject of a claim. 

The making of the injunction would constitute lawful authority to enter the property pending the hearing of the possession claim under CPR 55.5. The purpose of this injunction is not to dispossess the occupiers before the hearing of the possession claim but to recover items in the premises or protect those items from damage. 

Reform

In my view, the time has come for Part 55 to be amended to include an express power, in exceptional circumstances, allowing the courts to give possession orders on a without-notice application. Such orders could be interlocutory and can require the same undertakings the landowner must offer under the existing provisions of CPR 55.25, when seeking an interim possession order.

As Lord Denning said in McPhail: “Although the law thus enables the owner to take the remedy into his own hand, that is not a course to be encouraged. In a civilised society, the courts should themselves provide a remedy which is speedy and effective: and thus make self-help unnecessary.” 

Are the courts providing a remedy that is speedy and effective? Part 55 provides a framework for recovering possession quickly in theory but, as many landowners and lawyers will know, the theory is often far from reality.

This article was first published in the Estates Gazette.