How should commercial property owners manage trespass?

Unauthorised occupation of property by trespassers can cause significant problems for owners. Property managers are at the front line in guarding properties against squatters, and dealing with any unauthorised occupation that occurs.

Strong security is key in ensuring squatters cannot access a property in the first place, and regular property inspections are crucial to ensuring prompt action can be taken against trespassers who manage to gain entry.

It is also important for property managers to have a good knowledge of the law around injunctions and possession orders so that they can act quickly to regain possession.

The key points around injunctions to prevent unlawful occupation, and possession orders to evict trespassers already in occupation are set out below.

In Wolverhampton City Council & Ors v London Gypsies and Travellers & Ors [2023] UKSC 47, the Supreme Court confirmed that injunctions can be ordered against so-called newcomers, that is persons unknown who were not occupying the land but could do so in future. 

That case involved Travellers, although newcomer injunctions have since been successfully obtained against protestors in Valero Energy Ltd & Ors v Persons Unknown & Ors [2024] EWHC 134 (KB). In this case, the High Court granted an injunction against environmental protestors targeting Valero's fuel processing sites.

Similarly, newcomer injunctions were imposed on prospective urban explorers to prevent them from trespassing on constructions sites in Multiplex Construction Europe Limited v Persons Unknown [2024] EWHC 239 (KB), as well as in the unreported case 1 Leadenhall Group London v Persons Unknown [2024] EWHC 854 (KB).

These kinds of injunction are subject to safeguards and so must be limited in their scope, in terms of their extent, the time for which they are imposed and the area over which they apply. Those affected who have the right to challenge them must also be notified.

In another unreported case, Anglo International Upholland Limited v Wainwright and Persons Unknown [2023] 5 WLUK 613, the High Court also granted an injunction against urban explorers.

As well as requiring several hard copies of the order to be placed around the site perimeter, the judge allowed the supporting documents to be served by placing QR codes there as well, which could be scanned by a smartphone and linked to the documents online.

This was considered the best way of ensuring large numbers of persons unknown could access the order. The court also allowed the named defendant to be served by email.

While squatting in residential buildings is a criminal offence, this is not the case for commercial buildings provided the squatters are not causing damage, using utilities or stealing from the property. Unless these are occurring, the police are unlikely to intervene in what the law regards as a civil matter.

Property owners may even incur criminal liability themselves by forcibly trying to regain possession if there is someone in the property.

The best approach in these circumstances is normally to apply to the court for a possession order. This can be done by anyone with a right to possession, which clearly includes the landowner, but could also be a tenant, licensee, someone with a right of way or even someone with statutory powers of maintenance and control over the property.

The application for possession must set out the facts around an unauthorised occupation, the applicant's grounds for claiming possession and details of those in occupation.

The proceedings must then be served on the trespassers at least two days before the hearing, and evidence of such service provided to the court. As with injunctions, possession proceedings can be served on persons unknown by attaching copies of the notice to the property itself.

If trespassers fail to leave, the next stage is to attend a court hearing and obtain a possession order. 

If trespassers fail to leave even after an order is issued, the landowner or person entitled to possession can apply to court within three months for a writ or warrant of possession and the trespassers will then be evicted by a court-appointed enforcement agent, with the locks changed and the property resecured thereafter.

At this point, the police will have greater power to intervene, as anyone obstructing a court-appointed officer from enforcing a possession order will commit a criminal offence. It may therefore be worth ensuring police officers are on hand when an eviction takes place.

If the same trespassers return to a property after an order is enforced, the owner or person entitled to possession can apply to enforce the initial order again rather than bringing fresh proceedings.

This could include a risk of fly-tipping, or where a property – perhaps a construction site or disused premises – is unsafe for occupation.

The main benefit of applying for possession in the High Court is that it can be much quicker. In county court cases, the proceedings must be served two days before the hearing. This can be reduced in the High Court.

In urgent cases, the court may be willing to reduce the time period for service of the claim and convene a hearing at short notice.

The possession order can then be enforced immediately through privately contracted enforcement officers authorised by the court.

Property owners who act within 28 days of becoming aware of squatters have the option of using an expedited interim possession order (IPO). This involves applying to court and serving an application on the squatters within 24 hours.

The court will then list a hearing for as soon as practicable, at which it can grant an interim order that must be served on the squatters within 48 hours. The squatters must then vacate the property within 24 hours.

Failure to comply is a criminal offence. This means that the police can intervene and arrest squatters; however, they may still be unwilling to do so, so obtaining a standard possession order may still be quicker.

Property owners or those entitled to possession can claim damages when applying for a possession order, but not an IPO.

However, if the trespassers are persons unknown the owner is highly unlikely to be able to recover damages from them, even if ordered. In these circumstances, most owners are primarily concerned with getting their properties back and resecuring them.

In some cases, squatters on open land who have not entered a building can be evicted at common law without a court order. This means landowners can remove squatters themselves, by using no more force than is reasonably necessary.

However, landowners are, understandably, often reluctant to do so, fearing a challenge by the squatters, and allegations of unreasonable force.

It is therefore important for landowners to take legal advice before attempting an eviction, and it is often more straightforward to go down the court route.

Property managers will usually be the first to become aware of squatters, so the onus will be on them to take swift action to secure possession, and to make sure appropriate security measures are in place to keep it.