The purpose of this article is not to focus on issues relating to tenants – domestic or commercial – who face eviction, for example, for non-payment of rent. Local authorities and other social housing providers no doubt already have their own well-established procedures in place for dealing with such people. (This is probably a timely point to mention that when Part 3 of the Tribunals Courts and Enforcement Act 2007 is eventually implemented, current procedures will almost certainly have to be revisited, due to the abolition of ‘distress for rent’ and its replacement with the new ‘Commercial Rent Arrears Recovery’ procedure which, as the name suggests, will be available in commercial tenancies only.)
This article focuses instead on scenarios where local
authorities and other public bodies find themselves having to deal with squatters, protesters and travellers on their land, what methods are available to deal with such people and which would be most appropriate and effective in any given circumstance.
As mentioned, there are a variety of methods available for carrying out such evictions. Some of them involve more court involvement than others - some indeed will not involve going anywhere near a court at all – but not are available in all circumstances and a certain amount of background research would be required to identify what enforcement route should be taken.
Perhaps the first thing to identify would be whether the matter can be dealt with by way of a ‘common law’ eviction; whether it requires police involvement because a breach of the criminal law has taken place; or whether the matter has to be pursued through the civil courts.
If we look firstly at evictions that can be carried out under the ‘common law’.
Under the common law, if trespassers peaceably enter and remain upon land without permission, the person who has legal possession – or perhaps more accurately, is entitled to legal possession – of that land may require the trespassers to leave and, if the trespassers refuse to do so, may remove them using ‘no more force than is reasonably necessary’. If the trespassers entered by force and using violence, moreover, the person in legal possession may remove the trespassers without making a previous formal request for them to depart. Such evictions will usually be carried out by certificated bailiffs – either directly employed by the relevant local authority or contracted from a private enforcement company to carry out this task.
Of course, the issue here is what equates to ‘no more force than is reasonably necessary’? This can often be difficult to gauge and consequently it is often regarded as good custom and practice to notify the police when such an eviction is about to take place, so that they can be on standby, and should a situation where a breach of the peace takes place occurs, they will be able to step in and deal with it. However, with ever diminishing budgets and resources available to them, police forces are increasingly unwilling to get involved in such disputes and there is always a danger that the trespassers may file damages claims in their eviction resulted in alleged assaults, injuries or damage to vehicles or property. In such circumstances, many landowners may feel that they need rather more security and would prefer to have the safety net
THE TERRIER - Autumn 2011
of a court order or the power of the criminal law behind them when evicting trespassers.
Luckily in some circumstances such criminal law powers do exist for local authorities to take advantage of.
One example is section 77 of the Criminal Justice and Public Order Act 1994. Under this Act, local authorities may direct persons who are unlawfully residing in vehicles on land in their own area to leave. These powers also extend to privately owned land within the authorities area of jurisdiction. It is a criminal offence for the trespassers not to comply with any such direction, or to return to the land within 3 months of the order being made, and the magistrates’ court may also make an order authorising the removal of people and vehicles from the land concerned in these circumstances.
The powers under section 61 of the same Act could potentially be even more draconian and move into the arena of more active police involvement. The powers in this section come into effect if certain additional criteria have been met – that is to say, that the trespassers have caused damage to land or property; that they have used threatening, abusive or insulting words or behaviour to the landowner, his family, his employees or his agent; or that 6 or more vehicles (including caravans) are present on the land with the apparent purpose of residing there. Under these powers and in these circumstances, a senior police officer may give an instruction to the trespassers to leave and not return within 3 months, and may even order the arrest of the trespassers and impounding of their vehicles notwithstanding that no magistrates court order has been obtained beforehand.
Scope also exists in limited circumstances for police to become actively involved in the eviction of squatters from domestic premises owned by local authorities or other social housing providers. Under section 7 of the Criminal Law Act 1977, any person who is on any premises as a trespasser after having entered as such is guilty of a criminal offence if he fails to leave those premises on being required to do so by the displaced residential occupier. The maximum penalty for this offence is 6 months imprisonment or a £5,000 fine or both.
For those evictions not covered by such powers – such as evicting squatters from council owned commercial premises, for example – recourse will have to be made through the civil courts. This will usually be done by way of an application through the county court to begin with, although for enforcement purposes there is scope for the matter to be transferred up to the High Court.
Possession claims through the civil courts are made using the procedure laid down in Part 55 of the Civil Procedure Rules, and will usually commence in the local county court (Possession Claims On-Line, or PCOL as it is known, is not available for such claims), with the claim being made on a claim form N5 accompanied by the particulars of the claim and any witness statements the claimant is intending to rely on in court. Where the names of some or all of the defendants are not known, the claim must be made against ‘persons unknown’ as well as any named defendants.
Action does not have to commence in the county court, however. There is scope for the case to be commenced in the High Court if certain exceptional conditions are met, and the case of Mutley vs. Somerset (2007) largely established what
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