We are now into the third week of lockdown and we have emergency legislation and amendment to the Civil Procedure Rules giving clarity and effect to the government's promise to protect renters from eviction from residential premises during the crisis. But what about squatters who, a landowner will say, have no licence or consent to be in occupation? It seems that they also have some protection.
Since 1 September 2012, it has been a criminal offence to knowingly squat in a residential building and that remains the case. However, with over 40,000 pubs in England and Wales and numerous commercial buildings and development sites now standing empty and unmanned, there is a real risk that property which is not classed as residential will become occupied by squatters. So what can a landowner do to protect property?Securing premises against forced entry will be essential. Ordinary locks and alarm systems may be insufficient and it would be wise to increase security measures at this time. Whilst it is difficult to keep the most determined of squatters at bay, it is certainly worth making a building less attractive and easy to access, by boarding up windows and doors or erecting hoarding.
If squatters do gain entry, the landowner will not, as matters currently stand, be able to obtain and enforce a possession order. Practice Direction 51Z, which was introduced on 27 March 2020, suspends all claims for possession under Part 55 and so imposes a moratorium on all evictions, initially for a period of 90 days. This includes claims against trespassers and applications for Interim Possession Orders, which are specifically for use against squatters. Although we have heard of some evictions taking place after 27 March 2020, it is likely that these were in respect of warrants issued before that date.
Whilst it may be possible to issue a possession claim in one of the Courts which remains open, it will not progress any further. HMCTS have published Listing Priorities for the Civil Courts which are updated frequently and published on the HMCTS daily operational summary on Courts and Tribunals during the coronavirus outbreak. Matters are categorised as "Priority 1", for work which must be done, and "Priority 2", for work which could be done. Possession claims against trespassers feature on neither list.
A landowner will however be able to pursue an injunction; this is Priority 1 work. Therefore a more creative solution may be necessary to deal with the problem of squatters.
The Court of Appeal gave guidance on the principles to be applied when dealing with injunctions against "Persons Unknown" earlier this year, in Canada Goose UK Retail Ltd v Person Unknown [2020] EWCA Civ 303. Although the case related to the clothing company's attempt to reinstate an interim injunction to prevent protests (outside its flagship store), the same principles may be applied to squatters.
The general rule is that claims must be brought against named parties and any Defendant who can be identified must be named. However, there is an exception to the general rule where a Defendant can be described in “a way that makes it possible in principle to locate or communicate with him and to know without further enquiry whether he is the same as the person described”.
In the case of squatters, the label "Persons Unknown in occupation of [address]" may be used to describe anonymous Defendants, who are identifiable at the time the proceedings commence but whose names are unknown – ie, those already in occupation of a property.
A landowner may also seek a preventative interim injunction which includes persons who are yet to join to group and who may also fall within the description of "Persons Unknown". It may be necessary to seek an order for service by an alternative method, such as by affixing Court papers to the building, so that the "Persons Unknown" can be properly served.
Before granting an interim injunction, the Court must be satisfied that there is a sufficiently real and imminent risk of a tort (ie a trespass) being committed and the terms of any injunction must be specific to that threat and not so wide as to prohibit lawful conduct. The terms must also be clear and precise and described in ordinary, rather than legal, language.
If the squatters do not comply with the injunction, they will be in contempt of Court. The landowner can therefore make an application to commit them to prison, although careful consideration will need to be given to how the relevant persons will be identified.
One technical difficulty is that any final injunction order will not bind a person who has not committed the prohibited act by the date of the order. Therefore, a final order will not give protection against anyone unlawfully entering the property at a later date.
Realistically, all this means that "security, security, security" is the mantra for landowners, as prevention is certainly better than the cure given the limited remedies for dealing with squatting at the present time.
If you need assistance in dealing with squatters, please contact Emma Salvatore or Doug Rhodes.
