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Trespassers – Process for evicting Trespassers and Squatters

What is the difference between trespass and squatting?

Trespass occurs when a person enters a property without the permission of the person who owns the property. In general terms if a person enters a rental property without the permission of the Landlord, this will be trespass. If the trespasser remains in the property without the Landlord’s permission or consent, this will be squatting. Although, in practice, these terms are used interchangeably within the field.

Is trespass/squatting a criminal offence?

Other than in very specific circumstances, such as squatting in a residential building or trespassing on land with vehicles, squatting is a civil wrongdoing, for which civil remedies will be required. The procedure is set out in Part 55 of the Civil Procedure Rules.

NB: A possession claim against trespassers can only be brought against a person or persons who entered and remained on the property without the consent of the owner/landlord. It does not apply to a claim against a tenant or subtenant when their tenancy has been terminated.

How do I recover possession?

The safest approach is to obtain a Court Order for possession. The route will depend on on whether the identity of the Trespasser/Squatter is known to the Landlord, or if it is a “person unknown”.

1. If the identity of the Trespasser/Squatter is known to the Landlord

      Proceedings for a possession claim against trespassers must be started in the County Court for the district in which the property is located. There are two application types for trespass proceedings, Possession proceedings procedure and Interim possession order procedure.

      Possession Proceedings Procedure

      The owner/landlord must file a claim form (N5) and particulars of claim for possession (trespassers) form – Form N121. The particulars of claim must include the following information:

      • The property that is the subject of the claim
      • The landlord’s interest in the property and the basis of the claim for possession such as whether they are the freeholder or leaseholder of the property
      • The circumstances in which the property was occupied without consent
      • Whether the claim relates to residential property
      • That the trespasser/squatter was not previously a tenant or a sub-tenant at that property
      • Details of every person who, as far as the owner/landlord is aware, is in possession of the property.

      The owner/landlord must file a witness statement along with the claim form and particulars of claim in order to ensure that all the relevant documents are served on the trespasser at the same time. If the Court is to serve the proceedings on the trespasser, then they will do so by first-class post except if this is a person unknown (see below). The court will fix a date for the interim hearing when it issues the claim form.

      However, in practice, the claim will usually be returned to the Claimant or their representatives to allow service on the trespasser to effect service personally or by a process server, especially due to the strict time limits for service before the hearing. It is vital that the server of the proceedings provides proof of service that can be produced as evidence to the Court.

      Interim Possession Order Procedure

      Alternatively, the owner/landlord my seek to remove the trespasser by applying for an Interim Possession Order (IPO) using the claim form (N5) and application notice (N130), along with written evidence in the form of a witness statement from the claimant personally, or a duly authorised officer if the Claimant is a body corporate. This must be done within 28 days of knowledge of the trespass or when the Claimant ought to have reasonable knowledge of the trespass, otherwise an IPO is not available as a remedy.

      The possession hearing is listed as soon as possible but not less than 3 days after the date of issue, and the above-mentioned documentation must be served on the trespasser by a process server within 24 hours of Issue of the Application. The Claimant must file at the Court a Certificate of Service which is completed by the person who served the relevant documents on the trespasser. It is vital the requirements for an IPO are met for the Court to grant a possession order.

      After the interim hearing and has granted an IPO, the Court will list a hearing for the claim for possession which cannot be listed less than seven days after the IPO has been made. The IPO must be served on the trespasser and affixed to the property within 48 hours of being sealed. A squatter who fails to leave the premises within 24 hours of service of an IPO, or who returns to the property within 1 year of the IPO being granted, commits a criminal offence. However, if the IPO is served late or not affixed within 48 hours, an offence will not have been committed.

      The court will then set a date for the substantive hearing (as above). The IPO will expire on the date of the substantive hearing, and the Court can decide whether to make a final order for possession or any other relevant order.

      2. If the identity of the Trespasser/Squatter is known to the Landlord

      Where, in a possession claim against trespasser, the claim has been issued against ‘persons unknown’, the claim form and particulars of claim and any witness statements must be served on those persons by attaching copies to the main door or some other part of the property so that they are clearly visible and inserting copies of those documents in a sealed transparent envelope addressed to ‘the occupiers’ through the letterbox, or alternatively, if dealing with open land, attaching sealed transparent envelopes addressed to ‘the occupier’ to stakes with prominent locations at the property . It is highly recommended to instruct a process served to carry out this action.

      If the landlord does not know the name of one or more of the trespassers, then the claim must be brought against ‘persons unknown’ in addition to any named defendants, and if you do not have the details of any of the squatters, the claim will be addressed to ‘persons unknown’ in general.

      Proceedings commenced against a person unknown will prevent you from recovering your legal costs for these proceedings.

      If any timeframes are missed, this can have an impact on whether the Court will grant a possession order. Therefore, it is in a landlord’s best interest to familiarise themselves with the rules and comply with all statutory requirements. 

      By Christopher Palmer

      Disclaimer: The content of any article posted on this website is for general information only and shall not be deemed to be, or constitute legal advice on any general or specific matter.