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- Tenants' break options: recent case law provides more banana skins for tenants to slip up on
- Administrators not liable for advance payments of rent which became due prior to their appointment
- Occupy London, St. Paul's and getting your land back
- Reinforcing the green belt – coming soon to a village green near you
- Is your land contract valid?
- Neighbour nuisance - the importance of existing planning permission
Occupy London, St. Paul's and getting your land back
Most readers will have seen or heard of the Occupy London encampment at St. Paul's Cathedral in recent months and will also be aware that court proceedings were necessary to remove the protestors. The Occupy movement did, of course, occupy (and to some extent still occupies) a number of sites right across the City (and beyond).
It is however important to remember that protestors are just another kind of trespasser. The legal processes and principles which apply to squatters and trespassers apply equally to protestors as well. An overview of the key issues in these processes along with examples of how these applied to the Occupy London actions is provided below.
Proceedings against trespassers – an urgent case?
The Court rules do recognise that claims against trespassers should be dealt with 'urgently'. After all, land and property owners usually regard getting their premises or land back and regaining possession as an urgent business In many cases, the trespassers will have no credible defence. Therefore, the rules do contain bespoke procedures for dealing with possession claims involving trespassers (these are set out in Part 55 of the Civil Procedure Rules).
Timeframe for court hearings
The key feature of Part 55 is that it provides the opportunity for a landowner to obtain a Court hearing within a matter of days (considerably quicker than in other Court procedures). Although the Courts are busy, they will look to list the matter for a hearing as soon as possible – hopefully within a week or two.
If this really isn't quick enough, it is possible to apply to the Court to shorten these timescales even further to a matter of hours or even minutes. However, the landowner will need to persuade the Court there is an urgency above and beyond the usual urgency of any possession action. For example, in the case of University of Sussex v Protestors the Court allowed the landowner to give student protestors just 45 minutes' notice of the hearing.
However, even in these cases, landowners must still make sure that the trespassers get some notice of the hearing so that they can attend and put a defence across if they wish to do so. If the trespassers do not any real notice, this may allow them to appeal against any possession order which the Court grants. This would ultimately delay recovery of possession.
This happened in one of the Occupy London possession actions (Sun Street Properties v Persons Unknown [2011]) which concerned the former UBS building near Liverpool Street, London. Although the landowner successfully obtained both a hearing date and possession order at extremely short notice (providing notice of a matter of minutes), the trespassers were subsequently able to argue they had been given no real notice at all and that an appeal needed to be heard. Whilst this didn't affect the landowner's ultimate right of possession, it bought the trespassers extra time – and time is often key in these situations.
The hearing itself - obtaining a possession order
The legal basis of most possession claims is very straightforward (essentially, a landowner is entitled to possession of its land which is being occupied without any consent) and many trespassers do not turn up at the hearing. Therefore, an initial hearing of five to ten minutes is usually enough to dispose of the claim and the Court will grant a possession order. However, if the trespassers do attend, have legal representation and raise some sort of defence, then the process can potentially become more protracted. For example, the action to remove the Occupy London protestors from St. Paul's Cathedral had to be listed for a four day hearing and the judge then took a further month to deliver his judgment!
Human rights
One of the key reasons for this related to the issue of human rights. The protestors argued that they had the right to protest outside St Paul's - the right to assemble and the right to express their views. They argued that efforts to remove them amounted to an unlawful interference with these rights. Like it or not, the Court (and the City of London) accepted that these rights were relevant and gave weight to them. However, ultimately the Court had to balance these rights with other people's rights (such as the rights of the visitors to St. Paul's to worship) and consider permissible qualifications on these rights (human rights are never absolute). In doing so, the Court had little difficulty in finding against the trespassers and making the order for possession.
Landowners should take comfort that, generally speaking, human rights arguments (if raised) are highly unlikely to prevent (or delay significantly) a landowner from obtaining possession from trespassers. This is especially the case with private land, where human rights arguments will be given far less weight than when public land is involved. However, the position is more nuanced with public land as shown in the St. Paul's case).Therefore human rights arguments should not simply be dismissed out of hand.
Enforcing the order and carrying out the eviction
Obtaining the order for possession is unfortunately not always the end of the story and the order may still need to be enforced (as many trespassers do not leave immediately following the order). If so, the landowner will need to apply for the Court bailiffs to enforce the order and physically evict the trespassers. Getting an 'eviction date' can take several days or weeks and again it depends on the particular Court's diary.
Many evictions are straightforward and the bailiffs will be able to carry out the process themselves. However, if it looks likely that they will be unable to do so, they can involve other bailiffs and also the police - the police usually only becoming interested at this late stage (and not before). Many will have seen how the eviction of the St. Paul's encampment was actually a large scale operation involving a number of police and bailiffs attending.
Injunctions
Landowners should also be alive to the availability of injunctions. An injunction forbids trespassers from entering a particular area of land and is potentially punishable by imprisonment. Injunctions can also apply not only to land that is being occupied, but other land as well if the landowner can show there is a real risk of that other land being occupied. These can be applied for at the same time as a possession order, or as an alternative to one. Injunctions played an important part in the possession actions against the Occupy London group. Firstly, some landowners of public spaces in the City obtained injunctions to prevent protestors entering areas of land such as Paternoster Square or Canary Wharf. Additionally, in the St. Paul's proceedings, the City of London successfully obtained a number of injunctions (in addition to its order for possession) which prevented the protestors simply moving onto land adjacent to St. Paul's.
Comment and reform
Unfortunately recovery of possession of land from trespassers will continue to cause landowners significant aggravation and inconvenience (despite the government's plans to criminalise squatting on residential premises). However, receiving the best advice and careful tactical planning is crucial in successfully recovering possession of land, getting it done quickly and preventing further trespass.
Please contact us if you have any queries in this regard.
Christopher Hill, Associate and Lauren King, Associate, in the Property Litigation Group at Field Fisher Waterhouse LLP