Property dispute: dealing with trespassers or squatters

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How can I deal with a squatter or trespass on my property?

Luton vicar, Mike Hall, hit the headlines last winter after he successfully reclaimed possession of his home (which had been sold by identity thieves) only to find that when he returned to his property, squatters had moved in. More recently, the Guardian reported an increase in squatting alongside the lack of affordable housing.

What is squatting?

Squatting, known in some circumstances as ‘adverse possession’, is when somebody intentionally enters your property and takes up residence there without your consent.

What rights do squatters have?

Squatting in a residential property, such as a house or an apartment, is against the law and can result in a six-month jail term and a £5,000 fine for the perpetrators. You should note that if you rent your property to someone and they stop paying the rent, this does not amount to squatting.

If a squatter, or a succession of squatters, has continuously lived in your property for 10 years (12 years for an unregistered property) without your consent and you took no steps to object and assert ownership, they can apply under adverse possession to become the registered owner of your property.

HM Land Registry would inform you of an adverse possession  application and decide if it is valid. You should contact a solicitor immediately if you receive notification, as there are strict time limits to register a valid objection. If successful, you will need to take steps to remove the squatters and reclaim your property promptly. If you do not act in time, and the squatters reapply for ownership (which they are allowed to do after two years), you will not be allowed to object again.

How can you evict squatters?

If squatters have taken over your property, you need to follow a legal process to get them out. Do not try and eject them yourself using force or threats, as this would be breaking the law.

Our solicitors can apply to the court for an interim possession order or make a claim for possession.

An interim possession order is only an option if it has been 28 days or less since you discovered that squatters have moved into your property. Again, the timescale for action is tight, so contact our solicitors as soon as possible.

After being served with the interim possession order, the squatters can be jailed if they do not vacate the property within 24 hours and stay away from your property for a year.

To get final possession of the property, your solicitor will need to issue a claim for possession.

If it has been more than 28 days since you found out about the squatters or if you want your solicitor to include a claim for any damage caused by the squatters, you cannot use an interim possession order and your solicitor will use the ordinary claim for possession procedure instead.

If the squatters refuse to vacate the property after you have obtained a possession order, your solicitor can apply for a warrant for possession to instruct bailiffs to evict them or a writ of possession to move the matter to the High Court and require a High Court Enforcement Officer to get the squatters out.

What is trespass?

Trespass to land has been defined by the courts as unjustifiable interference with land which is in the immediate and exclusive possession of another. You do not necessarily have to be the legal owner to have ‘possession’. It means whoever has the right

to occupy or physically control the land, for example a commercial tenant.

Although squatting is a form of trespass and  a criminal offence if done on a residential property, there are other forms of trespass which are not actually illegal but which could become a serious problem. These types of trespass would require you to take civil action to make the perpetrators stop.

Examples are:

  • people dumping rubbish on your land (including fly-tippers) or allowing noxious substances to enter your land;
  • someone encroaching on your land for their own use, such as moving their fence onto your garden;
  • something overhanging your property, such as eaves;
  • somebody exceeding the permission you gave them for the use of the land, such as staying on your property beyond the hours that you have specified or using a piece of land which is not  included in the licence you granted.

What are your legal options if someone is trespassing on your property?

If someone is trespassing on your property and you cannot persuade them to stop, you can take legal action in the courts to claim damages, seek an injunction to stop them, or both.

To successfully obtain an injunction, it is necessary to show that the person you accuse of trespassing is using or possessing your land. The injunction may not be granted if the court feels that the trespass is trivial. Similarly, any damages you are awarded may only be nominal if there has been little or no damage caused by the trespass.

If the trespasser has caused physical damage to your property, the compensation you receive will cover the reduction in value of your land, rather than the price of restoration. If the trespasser has taken over the land completely and you cannot gain entry, you can bring a right to possession claim as well as a claim for any loss you have suffered while your land was occupied by the trespasser, including any damage they have caused. 

What defences are available to trespassers?

An alleged trespasser may have a defence for entering your land if they can show that:

  • you gave them express permission to use the land (either written or verbal);
  • they had a legal right of way over the land – for example, an easement;
  • your land has a public right of way running through it; or

it was necessary to enter the land – for example, for police officers to carry out their lawful duty, or where a neighbour needs to carry out repairs and makes a successful application for an access order under the Access to Neighbouring Land Act 1992 (this would only be granted by the court if you would not suffer unreasonable hardship or disturbance).

How we can help

If someone is using your land without your consent or authority  and you want them stopped, you should consult our experienced property litigation team without delay. They can advise you of the best course of action, negotiate with the offending party to try and get the matter resolved without resorting to court action, or take all the necessary legal steps to help you reclaim the use of your property through the courts, if required.

For further information, please contact Rebecca Beynon-Phillips in the property litigation team on 01733 882800 or email [email protected].

Rebecca Beynon-Phillips LLB, Senior Associate

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