Update on Possession Claims: The Courts allow removal of squatters – Landlord guidance during the Coronavirus pandemic

Closed offices, boarded retail shops and empty high streets have become the new landscape across the real estate sector. As the Coronavirus pandemic continues, both urban and rural landlords should be alert to issues that may arise from empty buildings, in particular safeguarding their property against unlawful occupants and squatters.

A stay of possession proceedings

On 27 March 2020, Practice Direction 51Z was introduced as an emergency measure to stay all ongoing possession claims for 90 days relating to proceedings brought under Civil Procedure Rule 55. Landlords will not be granted a possession Order nor be allowed to enforce a possession Order until the end of June at the earliest and warrants or writs of possession will also be suspended. Not only does this rule apply to residential and commercial tenants, it also extends to include licensees, former licensees who no longer have a right to occupy and mortgagees/lenders seeking possession from their borrowers.

The new Practice Direction created ambiguity in relation to squatters:

• Before 27 March 2020  – if squatters acquired possession of a property and have not been evicted prior to that date, they have inadvertently been guaranteed tenure of the property for 3 months; or
• After 27 March 2020 – if squatters take up possession of a property following that date, late June 2020 would be the earliest they would face eviction proceedings.

As of 20 April 2020, the courts amended Practice Direction 51Z with immediate effect, confirming that the stay on possession proceedings does not apply to claims against trespassers.  This is very welcome news indeed for landlords and land owners, nevertheless we have detailed below action points that landlords can take if their property has already been occupied by squatters.

Interim Possession Orders (IPO) and urgent Injunctive Relief

The amended Practice Direction makes it clear that landlords are able to use IPO’s to remove trespassers occupying their premises without their consent. Should an IPO be granted by the Court the squatters must leave the premises within 24 hours after being served a copy of the IPO, or they will be guilty of a criminal offence.

Importantly the Practice Direction clearly explains that the stay does not apply to claims for injunctive relief. Nonetheless, the effectiveness of the courts to deal with urgent injunctions will depend on their resources and enthusiasm to involve themselves in possession matters during these challenging times.

Landlords must be aware of the practical challenges and formal requirements when pursuing injunctive relief in squatting matters.  We can provide specialist advice on the court’s guidance and relevant factors and issues that the court takes into account, as set out recently by the Court of Appeal in Boyd and another v Ineos Upstream Ltd and others [2019].

An ounce of prevention is better than a pound of cure

Landlords will undoubtedly try and avoid squatting situations from arising, and we have outlined some practical points to consider for their properties. These include enhanced security measures and ongoing awareness of insurance obligations.

1. Installing CCTV, security lighting and/or alarm systems;
2. Change locks at the property’s entry points regularly;
3. Weekly visits or employing a security guard;
4. Isolating the water, gas and electricity supplies;
5. Protective window glazing by boarding up if necessary;
6. Notifying insurers if the property will be unoccupied/trade ceased for more than 30 days and/or in accordance with their respective policies; and
7. Complying with maintenance and security obligations required as a policyholder.

These measures will undeniably come at a cost. However, while landlords will aim to protect cash flow during these unprecedented times, tenants unable to carry on business from their property due to the presence of squatters will be much less likely to pay rent than tenants returning to secured properties ready to operate when government restrictions are lifted.

If you are affected by the above and would like to discuss your options or would like legal advice tailored for the ongoing public health situation, please contact Property Litigation partner Shams Rahman or any member of the Property Litigation team.

We are continuing to publish regular online updates on all the legal implications relating to Coronavirus.

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