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When unwelcome guests come to call …

15 July 2009

When property litigation lawyer Nick Cox receives an urgent call first thing in the morning from a director or property manager, he has a fairly good idea of what is to come.

The company has a large car park or some adjoining land – perhaps just a bit of green space where staff sit on a sunny day to eat lunch. Maybe it’s part of a factory or warehouse unit, perhaps on the edge of a business park. It’s usually close to a motorway junction.

But on this particular morning, what was open space is now occupied by vans, caravans, lorries and a few cars. It may be simply a nuisance or something more serious; particularly if a friendly approach has been met with a less than friendly response or they indicated they were planning to stay for the week.

Everyone knows that the law rarely springs into action at the drop of a hat, but this is one of those occasions when, properly briefed, it can.
Part 55 of the Civil Procedure Rules allows proceedings for summary possession to be taken against those who enter onto land (a building or any open space) without permission. Unfortunately, a claim does have to be issued but the waiting period between the date of service and the hearing need be only two clear days. So a claim issued and served on a Monday can be heard by Thursday morning and the order for possession can come into effect immediately.

And as soon as the order is made, a warrant can be issued to the High Court Sheriff and he (or his deputy) would normally pay a preliminary visit within 24 hours.

Although some disruption and possible loss of trade is unavoidable, if you are able to act with speed and precision, any delays can be kept to a minimum. The lawyer acting for you will have questions, such as time and date of the incursion, how much of the site is occupied (a plan or photos are very helpful), how many vehicles are involved and registration numbers. It is also vital to be able to prove who owns the land, or has a right to immediate possession. Details of the right to occupy and whether it is freehold or leasehold are crucial.

Nick Cox recently dealt with a case of this type for a prestigious client with an extensive site in the Prestbury area. The client made all this information available to us, along with excellent site photographs. As a result, we were able to get an order for possession, not just of the area that was occupied but also of the client’s adjoining land, in order to prevent the trespassers moving 400 yards down the road and re-entering the site. It is rare to get such an order.

Should you be ever be unlucky enough to have to eject unwelcome visitors from your land, here are a few points to bear in mind:

  • You do not need to know who they are as proceedings can be issued against ‘person or persons unknown’
  • Never try to remove the visitors yourselves. In most cases they are relatively harmless but it is not worth pushing your luck.
  • The police do not usually need to be involved but if you don’t have an on-site presence at night, it is wise to warn them of the situation and this may lead to a few patrol cars in the vicinity during the small hours. You may also want to remove items from harm’s way if they are not bolted down!
  • This is going to cost money that you will never see again. On top of your lawyer’s fees, there will be court fees and process server’s costs. It’s a job that requires speed and good co-ordination and, though short in duration, it can be quite labour-intensive for a few days.

Incidents of this type are still rare, but there seem to be more unwelcome guests close to the M5 in summer than at other times of the year. If you have a lot of unguarded open space, it may be worth spending a little time and money to minimise the likelihood of this happening to you.

Partner Nick Cox specialises in commercial contract disputes and has particular expertise in contentious landlord and tenant work. He is a member of the Property Litigation Association and an ADR Group-accredited mediator. He is rated in The Legal 500 for his work in commercial disputes as well as in the specialist area of property litigation. nick.cox@willans.co.uk

If you need clear and pragmatic legal advice, we’re here to help so please get in touch.

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