Has the Coronavirus Act 2020 and the stay of possession proceedings affected my ability to seek possession against trespassers?

As landlords and tenants are well aware the Coronavirus Act 2020 and changes to the court rules have given tenants some security during the current pandemic, namely that they will not be evicted from their property. Originally this was to be until June, then (for residential tenants) August then September and at the date of writing this article, is now December 2020 (for commercial tenants). 

Initially there was a total prohibition on progressing all possession claims, but this was subsequently modified and the following exceptions to the stay were allowed: 

• a claim against trespassers to which rule 55.6 applies (Rule 55.6 under the Civil Procedure Rules applies to ‘persons unknown’ claims);
• Interim Possession Orders;
• Claims for injunctive relief; and
• Applications for agreed directions.

This seems sensible since the motivation behind the government’s intervention was to protect tenants, who may be affected by the pandemic, from losing their homes. This should not however prevent a landowner from being able to protect their property against trespassers (‘squatters’) who move in without any legal authority in the first instance. 

One question still remains and that is whether the owner is able to initiate possession proceedings against a squatter whose details are, for whatever reason, known to them or whether the exception is solely related to true ‘persons unknown’ possession claims. The Court has provided some assistance in the matter of Mayor and Burgesses of the Hackney London Borough Council and another v Powlesland and others [2020] EWHC 2102 (Ch), where there are named Defendants and also ‘Persons Unknown’ then the claim is not stayed, but regrettably the Court did not comment on the position where all squatters are known and whether a claim of this nature would be caught by the stay. It as such appears that despite the recent amendments to Practice Direction 51Z there still remain some unintended consequences and the exception only relates to claims where the squatters details are unknown to the owner.

Isn’t squatting a criminal offence?

Squatting in a residential building is a criminal offence under Section 144 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, which means police can become involved in a case of trespass involving squatters if the squatter:

• is in a residential building as a trespasser and entered as a trespasser
• knows, or ought to know, they are trespassing
• is living in the building or intends to live there for any period. 

The same is not applicable to commercial premises (or open land) and it is as such still possible for squatters to enter commercial premises (or open land) without legal authority and remain there. Squatters are further protected from threats and intimidation in the eviction process under The Protection from Eviction Act 1977.

It is therefore important that landowners seek advice in any trespass claim involving squatters as failure to do so could have dire consequences. 

What can an owner do if he finds squatters occupying his commercial premises or land?

Owners of a commercial property, which is occupied by trespassers or anyone who does not have a right to be in the property, can apply to the court for a possession order.

The procedure is similar to the standard possession procedure and can be used against known defendants as well as persons unknown, so it is not necessary to name the trespassers in the court documents. They can be referred to simply as "persons unknown". 

Proceedings are usually brought in the County Court but can, if there is a substantial risk of public disturbance or of serious harm to people or property requiring the court to make an immediate decision, be brought in the High Court. The claimant must file with his claim form a certificate stating the reasons for bringing the claim in that Court.

If the name of the trespasser is known, then copies of the court papers must be personally served on the trespasser together with details of the hearing date by handing the documents to them. 

If the names are not known then they must be served in accordance with CPR 55.6 which provides that “where, in a possession claim against trespassers, the claim has been issued against ‘persons unknown’, the claim form, particulars of claim and any witness statements must be served on those persons by -

(a) (i) attaching copies of the claim form, particulars of claim and any witness statements to the main door or some other part of the land so that they are clearly visible; and
(ii) if practicable, inserting copies of those documents in a sealed transparent envelope addressed to ‘the occupiers’ through the letter box; or
(b) placing stakes in the land in places where they are clearly visible and attaching to each stake copies of the claim form, particulars of claim and any witness statements in a sealed transparent envelope addressed to ‘the occupiers’.

Interim Possession Order

A further option available to owners is to seek an Interim Possession Order (‘IPO’). 

An owner seeking to evict squatters can apply for an IPO under Part 55 as an additional measure to an ordinary possession order, although there are restrictions to using the IPO procedure these restrictions are that: 

• IPO’s can only be used for the recovery of premises and not open land;
• the IPO procedure is only available to landlords who start proceedings within 28 days of first knowing that the squatters are in occupation, or 28 days from when s/he should reasonably have known of the occupation;
• IPOs can only be used to evict squatters who entered the premises without the consent of the owner, not against ex-licensees or anyone who was allowed in by a tenant (even if the tenancy has come to an end) or anyone who has ever been given any kind of permission to occupy the property from someone who had a right of possession;
• the owner/landlord must have owned or been a lessee or tenant of the property throughout the period of the squatters' occupation, which means that a landlord who has just bought the property or started her/his lease or tenancy after the squatters' occupation cannot apply for an IPO to evict squatters;
• the owner/landlord must have an immediate right to possession of the property and there must therefore be no other person with an existing licence or tenancy.

If the trespasser fails to comply with the IPO it is a criminal offence for which they can be arrested.

There are several prescribed procedural steps that must be satisfied to ensure the timely removal of trespassers. As such, it is advisable that you seek legal advice at an early stage to ensure that you get it right. If you get it wrong, it can result in wasted expense and delay.

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