Trespassers - A Legal Guide to Possession

Where one or more trespassers enter on to land and occupy it, the law allows a summary procedure to recover the possession.

This legal procedure can be used in cases where the trespassers have entered or remained on the land (eg where a licence to occupy has been terminated) without the permission of the person who has a right to possession. Note: this means a tenant can apply to recover possession against a trespasser.

However, the summary procedure cannot be used by a landlord against tenants or sub-tenants even if the tenancy has terminated.

So, why use the procedure at all?  Simply because a landowner who attempts to evict trespassers without a Court Order risks allegations of a breach of the peace and may face civil or criminal sanction. (Therefore, it is better to let a professional who is used to physically taking possession take the strain).

For more information on this legal procedure, or if you have been affected by trespassers and want to know your legal rights, contact Clough & Willis today on 0800 083 0815, or fill out an online enquiry form and a member of the team will get back to you.

Getting an Order

Claims for trespassing are usually launched in the County Court for the area where the land is located. The High Court is only appropriate where there are complex issues of fact, or points of law of general importance to be considered.

Service is achieved by attaching the papers to some prominent place on the land (eg by using a stake in the ground); and inserting through letter boxes/doors.

Where the land is not residential (eg an open field, car park or commercial land) only two clear days service is required. This can be shortened if there is need, such as where the trespassers threaten violence against the claimant or threaten/cause serious damage to the property or other property in the locality.

The matter will then come before a (Deputy) District Judge, who will rely on written evidence. If a substantive defence is filed, then directions will be given, but where there is no defence, the usual order is possession forthwith.

Enforcing the Order

Once you have the order you can apply to the County Court for a warrant to be executed by the Bailiff.

However, depending on the circumstances it may be appropriate to transfer the order to the High Court for enforcement using the High Court Enforcement Officers (HCEO). The HCEO will have the know how and resources to remove the trespassers, and a relationship with the local police where trouble is expected.