Regaining possession of commercial property

Regaining possession of commercial property

Published:

Author: Natalie Aldread

When trespassers occupy commercial property, landlords often face an uphill struggle to regain possession and can be faced with a host of associated costs.

This guide highlights the steps involved, explains some of the pitfalls and suggests some practical considerations.

Self-help

The first port of call is likely to be the authorities. While such action is highly recommended, it can prove to be unfruitful. Police are often reluctant to become involved in a situation where a trespasser does not pose a clear threat to person or property. A landlord may consider appointing bailiffs to enforce eviction. This can be one of the fastest and cheapest methods to evict trespassers but, in the absence of a court order, 'sophisticated' trespassers are often aware of bailiffs' limited powers.

Businesses should also be aware of the potential damage to reputation, and criminal liability should violence be used or threatened.

The legal route

A sure-fire way of regaining possession is to obtain a court order.

In many claims this will take several months. However, in view of the urgency of evicting trespassers, an accelerated procedure is available, providing for much speedier action.

In order to ensure that the order is granted as quickly as possible, it will be up to the client - and its lawyers - to convince the court that the application is of utmost urgency. To this end, it will be necessary for an employee at the site to provide witness evidence explaining why action should be taken instantly. If possible, this should be supported by photographic evidence.

On any application for possession it is crucial to identify the land where the trespass is taking place. Deeds, leases and other documents relating to the property must be located, particularly where such information is held in-house.

It is important that the order covers all necessary land. Where there is trespass of part of the premises only, it is possible for a landlord to obtain a possession order covering the whole property. There are occasions where neighbouring land owned by the landlord should also be covered. In order to obtain such an order there must be a demonstrable risk that this land is at risk of trespass.

Once all the relevant information has been gathered, proceedings must be issued. In itself this can take a few days. Once issued, occupying trespassers must be served personally with proceedings. This is best carried out by a service agent who will be aware of the correct procedure to follow to ensure that service is not disputed.

In accelerated proceedings, the hearing must take place a minimum of two days after service. Assuming that the order is granted by the court at this hearing, arrangements are then made for the court order to be served on the trespassers immediately, upon which High Court-certified bailiffs can take action. At this point, many trespassers will simply move on.

Practical considerations

  • Trespassers often take the opportunity of bank holidays to occupy unguarded land, and can be fully ensconced before the next working week begins.
  • A locked gate is cheaper than an order for possession.
  • Call the police, but do not expect them to solve your problem.
  • Take pictures to support your application and locate all relevant documents relating to the premises.
  • Litigation costs will not be recovered, so carefully consider the most cost-effective plan of action.