Discovering that trespassers or protestors have stationed themselves on commercial land in England or Wales and are obstructing business, fly-tipping or worse can be a serious issue for land and business owners. The increase in occupational protest has been well publicised and for landowners it can also be eye-wateringly expensive to deal with. For example, in a recent high-profile action involving protests against construction of the HS2 railway, the eviction operation was described as 'complex and dangerous', and cost almost £3.8Million to carry out. So, what can you do to stop this if it happens and is there any way that you can act pre-emptively?
Trespassers already on land
The first point is that self-help is normally not possible. Whilst it is possible in some circumstances to engage in a dialogue with trespassers or protestors, there are significant risks associated with this – both from a personal safety point of view but also the potential criminal offences that can be committed carrying out unlawful evictions. Trespass (for the moment at least) is a civil offence, not a criminal one meaning that in theory you can ask the Police to help, but in practice they are generally reluctant to do so unless a crime is being committed.
There is an immediate common law power to evict in certain circumstances. Although the power that exists can involve immediate eviction, generally notice giving the trespassers reasonable notice will be given (sometimes 24 hours is sufficient), by a certified enforcement agent. If after 24 hours has passed, the trespassers remain in situ, the enforcement agents may use no more force than is reasonably necessary to evict, without the need for court proceedings.
If the trespassers that have set up camp, are excluding you from the land and are causing damage to your property or engaged in anti-social activities, you may be able to follow the expedited High Court process to obtain a possession order with 24 – 48 hours. This process allows the certified enforcement agents to forcibly remove offenders.
If the trespassers haven't actually excluded you but are protesting, then you may be able to obtain an injunction requiring them to leave. This can be done in short order in the right case. Obtaining an injunction makes it a criminal offence for anyone deemed to have been served with the injunction to enter the property.
Trespassers are threatening to come onto land or you are concerned that they might
As there is no one actually in possession of your property, the processes described above aren't possible.
However, it is still possible to obtain an injunction in respect of threatened trespass. This can also work if trespassers have entered part of your property and you are worried about them entering on wider parts. You would need to show that there is a real and imminent risk of further trespass – not simply a concern about the possibility that there might be some.
As with an injunction to remove trespassers, the important point is ensuring that any potential newcomers are served with the injunction. Defective service of documents in these types of cases can be calamitous, and the courts are littered with cases about service of trespasser injunctions by the unwary.
If you are a land or business owner impacted by trespassers or protestors on your property or you are concerned about the risk posed by them doing so, please do not hesitate to get in touch with our Real Estate Disputes team or your usual Brodies contact.
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