Trespass to land occurs where a person directly enters upon another’s land without permission, or remains upon the land, or places or projects any object upon the land. Trespass is not currently a criminal act (legal duty owed to and enforceable by society as a whole (falls under the Law or Tort (legal duty owed by one person to another).
By contrast, nuisance is an indirect interference with another’s use and enjoyment of land, and normally requires proof of damage to be actionable
How can a trespass occur?
- Walking onto land without permission, or refusing to leave when permission has been withdrawn, or throwing objects onto land are all example of trespass to land.
- Trespass to airspace above the land can be committed. ie trespass by allowing an advertising board to project into property .(no action shall lie in nuisance or trespass by reason only of the flight of an aircraft over any property at a height above the ground which is reasonable).
- Trespass to the ground beneath the surface. This can be held to be trespass to the subsoil.
Does it matter who has possession of the land? YES.
This tort has developed to protect a person’s possession of land, and so only a person who has exclusive possession of land may sue. Thus, a landlord of leased premises does not have exclusive possession, nor does a lodger or a licensee. However, a tenant or subtenant does.
We have Squatters, what do I do?
Squatting is when someone occupies an empty or abandoned property without the owner’s permission, often without his knowledge and without any normal legal right to do so. Fly-traders and squatters in residential and commercial premises and on vacant land are a continuing problem to property agents, landlords and local authorities. Genuine squatters cannot be forcibly moved without a court order. Squatters cannot be legally evicted from premises without a court possession order, unless they leave voluntarily or the owner secures peacable re-entry.
Guide to Removing Squatters
If you discover trespassers or squatters in your property you should be able to remove them quite legally within a two-week period, providing you go about the process correctly:
- Do not try to use force to remove the squatters yourself – you could find yourself accused of a criminal act under the Protection from Eviction Act 1977.
- However, peaceable re-entry is legal and acceptable.
- Try to persuade the squatters to leave voluntarily, failing which:
- Try the police – they may be willing to assist particularly if occupation is recent and there is evidence of forced entry.
- Try to get evidence to prove to the court that there are unauthorised persons in your property – names of trespassers if possible and statements from other residents and neighbours, and photographs will all be very useful.
- Get together evidence of your own ownership – Land Registry documents, title deeds, tenancy surrender documents etc.
- Contact bailiffs or a solicitor or start proceedings yourself.
- Visit your County Court or the Court Service web site – see below.
- The process can start through the court within 2 days.
- Once the correct notices are issued, the court should allocate an early hearing date.
- Squatters must be given five clear days’ notice and notices must be served on them personally, or, failing that, a notice fixed to the door of the property.
- The hearing is usually informal. The squatters may turn up and challenge but they must have evidence of a legal interest in the land (e.g., a tenancy) otherwise there is no defence to their claim for possession and the court should issue an Order for Possession.
- With a Possession Order the landlord can ask the squatters to leave. If they refuse he will need to instruct the court bailiff to evict, with police assistance if necessary.
- Once possession is regained, the locks should be changed and the premises properly secured
The RPS Guide to Preventing Squatters
Landlords would obviously wish to avoid occupation by squatters in the first place. Sensible precautions would be:
- Keeping properties securely looked when unoccupied. Security is a landlords’ concern not only when their properties are vacant.
- Maintain adequate security both when let and when vacant – local police will advise. Landlords can in theory be held responsible for a residential tenant’s losses if properties are vulnerable to burglaries etc. therefore it is in the landlord’s interest to do this.
- Vacant premises attract higher insurance premiums for landlords, so you should consult your insurers about measures they require you to take when your properties are vacant.
- Giving the appearance of occupation. Have curtains or blinds in place and perhaps have a neighbour or cleaners make regular visits. Leave radios switched on, and lights on timers.
- Commercial premises can often be occupied on a temporary trading basis, on short-term agreements (up to 6 months), particularly shops.
- Fence off or adequately barricade areas of vacant land.
- Provide regular security patrols if necessary.
- There are companies who specialise in providing temporary occupiers for vacant commercial and residential premises
- Make regular visits to premises and vacant land and monitor the situation carefully.
- Do not leave premises unoccupied for long periods. Most landlords do not do this as they want to avoid vacant periods. However, there are many instances where properties or land are left vacant for many years.
- If you find anyone occupying your property without your consent contact the police immediately. They may be able to act without reference to the courts, though they sometimes need some persuasion to do this.
- Try to be present when the police attend as you as owner can advise on the true situation and you want to avoid further damage to the premises.
- If the police are unable or not willing to assist, start legal proceedings for an Interim Possession Order immediately.
Useful Websites;
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