Squatters on Site? The 28-Day Race for Possession in England and Wales

Increased construction costs and delays to planning permissions mean that development timelines can stall, leaving more properties vacant for longer than anticipated. The cost of living has also risen, resulting in more people without affordable accommodation, leading to in an increase in squatting, both in residential and commercial premises.

Landowners then face having to remove the squatters and regain possession of their property, often urgently to protect against anti-social behaviour, property damage, theft, fly-tipping and the risk of liability to the squatters if they are injured by hazards in an empty building. These risks all lie with the landowner, as do the costs of recovering possession. It is no surprise that landowners in this scenario are often shocked that squatting in commercial property is not a criminal offence. Often the response from the police is that “it is a civil matter” unless there is a high risk of public disorder or serious property damage.

So, what civil options are available to a landowner which deliver quick results? 

The standard possession route

The standard possession procedure under Part 55 of the Civil Procedure Rules remains the usual route. In most cases, possession claims must be issued in the County Court and require careful preparation of claim documents, evidence of the owner's title and occupation status, and strict compliance with service requirements. Once the court is satisfied that the owner is entitled to possession, it will grant a possession order, which can then be enforced by County Court bailiffs or, in appropriate cases, High Court enforcement officers which is usually significantly quicker. 

It is impossible to say how quickly a possession order can be obtained via the County Court, as court availability can lead to lengthy delays. In exceptional cases, proceedings may be issued in the High Court where there are complicated disputes of fact or law, a substantial risk of public disturbance or serious harm to persons or property. Examples of such exceptional circumstances might be serious verbal or physical threats to security staff or members of the public, destruction of valuable machinery, obstructing critical infrastructure works or evidence of children being on site.

A faster alternative?

If the landowner acts quickly enough, it may be able to seek an interim possession order (“IPO”). An IPO is a fast-tracked court order requiring the squatters to leave the premises within 24 hours. The premises must consist of buildings, or land annexed to the buildings - an IPO is not available for open land. 

Once the IPO is granted, the squatters’ trespass is no longer a “civil matter”. A breach of an interim possession order is a crime and those who breach the IPO by remaining in occupation face arrest, fines or even imprisonment. Therefore, if the landowner can get engagement from the police to support enforcement of these criminal consequences (and often they can), then this is a powerful tool to regain possession quickly.

Most landowners will not know the identity of the squatters, but that is no obstacle. IPOs (like any possession order against trespassers) can be sought against “persons unknown” and service of the requisite documents is effected by the method prescribed under CPR 55: affixing them to the main door of the premises occupied by the squatters with copies through the letter box, or if this is not possible, affixing the documents to stakes in the ground where they will be clearly visible.

Speed is key – the critical 28 day deadline

A landowner must act quickly if it wants to avail itself of this remedy. Speed is not only important to reduce the risk of damage, vandalism or delays to development timelines: the IPO application must be filed within 28 days of the squatters first being discovered, or when the landowner ought reasonably to have known of the squatters’ occupation. A landowner cannot use the IPO route after that period.

It is therefore critical for a landowner to have discussions with those on the ground who first discovered the squatters and establish a clear timeline leading up to and after the discovery of the squatters. This information will form the basis of the evidence to be filed with the court in support of the application.

The court hearings

Once the application has been filed, the court will list a hearing as soon as practicable. This can be within a matter of days. The prescriptive process in CPR 55 also imposes strict timelines for the service of documents on the trespassers. For example, claim documents and evidence must be served within 24 hours of issue. 

The landowner should be aware however that the IPO route, in contrast with the standard possession process, requires two hearings. The first will be for the grant of the IPO, after which it becomes a crime to continue the trespass. However, a second hearing is required to make a final possession order. 

Although the IPO procedure involves two hearings, its practical advantage arises after the first: once the IPO has been served, remaining in or returning to the premises without lawful excuse becomes a criminal offence. In many cases, this prompts the occupiers to leave before the final possession hearing.

Practical Dos and Don’ts

The IPO process is heavily prescribed and process-driven under CPR 55. A successful application depends on that process being followed carefully. 

DO: 

• Establish exactly when the occupation was discovered

  The 28-day IPO deadline runs from that point, so evidence from site managers, security personnel and contractors should be gathered immediately.

• Take specialist legal advice immediately 

  Otherwise-solid applications for an IPO can fail if the mandated procedures are not closely followed. Taking legal advice early can help ensure that the IPO route is the right course of action in the circumstances and that the procedure is properly complied with.

• Confirm the identity of the registered owner

  The application must be made by that entity, and it may be that the developer is not the same entity as the landowner as registered at the Land Registry. Do get directors of the owning entity ready to authorise and sign the proceedings quickly.

• Identify all other occupiers and interests 

  For example, if there are other legal tenants or licensees lawfully occupying other parts of the property, make sure it is clear which parts of the property they occupy, on what basis, and that it does not impact the claimant’s right to make the application.

• Keep the occupation under review

  Situations can develop and it is important that the court is given the full picture and is updated where there is any change in circumstances during the proceedings.

• Prepare to secure the premises immediately after recovery 

  The appropriate security package will depend on the premises, the developer’s immediate plans and include a cost/benefit analysis, but may include on-site security, installation of security cameras, and sealing up access points including windows and doors. 

DO NOT: 

• Attempt forcibly to remove the squatters

  Anyone who forcibly enters premises where there is someone present at the premises who opposes the re–entry (even if that person is trespassing) will be committing a criminal offence under section 6 of the Criminal Law Act 1977.

• Approach or question the occupiers directly

  Landowners risk verbal or physical harm, or they can inadvertently make the situation more complex by asking for ID for the squatters, which may add additional service requirements for any person identified.

• Assume the police will always have the resources to enforce the IPO 

  Even after the IPO is granted, the timing of its enforcement will be dependent on police availability if the squatters do not leave voluntarily.

The key takeaway

An IPO can be one of the most effective tools available to a developer facing squatters in a building—but only if the conditions are met and the application is made within the strict 28-day period. Landowners should establish the timeline immediately, identify the correct property-owning entity and take specialist advice without delay.

If squatters or trespassers are affecting your property or development site, please contact us to discuss the available options. 

Coming next in this series 

This is the first in our mini-series on the practical and legal issues facing landowners dealing with squatters, protesters and trespassers. In part two, South East Enforcement’s Mick Haddon and Jon Tatam join HSF Kramer’s Michaela Abbs and Graeme Robertson to discuss the realities of enforcement on the ground - and how legal advisers, enforcement agents and site teams can work together to recover and secure premises quickly and safely.