A nightmare scenario many landlords fear is squatters breaking into their commercial premises, settling, and refusing to vacate without a court order.
Many squatters often know what they’re doing and know their rights. Landlords may find that the squatters have affixed some sort of notice to the door that says ‘THIS IS A NON-RESIDENTIAL BUILDING – Section 144 LAPSO does NOT apply’ – and they’d be right.
What are the landlords’ options?
The first port of call for most landlords is, naturally, to call the police. However, most find that the police will not get involved unless what’s known as an ‘interim possession order’ (“IPO”) has been obtained from the court. An IPO carries a penal notice that allows the police to remove the squatters if they have not vacated the property within 24 hours of the order having been made and served on the squatters. The Squatters could therefore be arrested and face criminal punishment such as fines, or even imprisonment, if they do not vacate.
So, a landlord can either initiate possession proceedings against trespassers in the ‘standard’ fashion, or, if they meet the criteria, seek an IPO. If they seek an IPO, they must act fast as the application must be made within 28 days of knowledge of the squatting.
The legal test
An IPO can only be granted if:
(1) the claimant is only seeking possession. A claimant cannot seek an IPO if there is a claim for another remedy (e.g. damages); and
(2) the claimant has an immediate right to possession and has had such a right throughout the period of unlawful occupation; and
(3) the defendants entered the premises as trespassers.
A common misconception is that the legal test for commercial property owners obtaining an IPO is the same as obtaining a standard possession order against trespassers – after all, a squatter is a trespasser, and to obtain an IPO, the individuals in question have to have entered the property as trespassers (as above).
However, this is not the case. To obtain a standard possession order against trespassers (that does not carry the same criminal sanctions for non-compliance), a landlord need only have a right to possession (not an immediate right). This is not the case for obtaining an IPO.
Immediate right to possession and potential issues
An immediate right to possession means one can claim a full right to possession and there are no superseding legal interests that stand in their way.
Registration gaps
A quite foreseeable issue that a landlord might face is, they purchase a property, and immediately undertake strip out and refit works before re-letting. Vacant commercial properties subject to strip out works, that look like building sites and are not fully secured, are prime targets for squatters.
The issue a landlord might face is that it can take many, many months for HMLR to complete the application to register the landlords proprietorship. During this period, known as a registration gap, the landlord is the beneficial owner of the property and do not hold an immediate right to possession, until the registration is completed (and the registration gap ends) at which point they become the legal registered owner.
In this instance, the court will likely want to see the registration completed, so it is key for Claimants to expedite any application for registration and be ready to produce updated HMLR office copies at least at on the day of the hearing. If this is not done, they risk the judge taking a view that the registered owner is the only party with the right to immediate possession and the claim may fail.
Leases
What often precedes vacant possession is the surrender of a Lease. Similarly with registration gaps, it can take HMLR many months to complete an application to remove the Lease from the register. In this instance, the court may consider the Landlord does not have the right to immediate possession and in fact it is the Lessee with this right. Again, it is vital the Landlord expedites any application to remove the Lease from the title or risk the judge taking this view.
Conclusión
IPO’s are brilliant tools for removing squatters quickly, however Landlords need to act fast and ensure they hit the procedural requirements. The penal notice IPO’s carry mean judges can often take an even more cautious approach to that of standard possession claims, so Landlords need to make sure everything is in place, and they are satisfied of their immediate right to possession.
Further, the IPO is only (by name) an interim order, and the possession order is not made final until the return date. As part of the prescribed form of application and witness statement, Landlords will give a number of undertakings – another distinct difference from the standard possession route – of which includes undertakings not to re-let or damage the property until the possession claim has been decided. Landlords therefore need to ensure they are not breaching any of the undertakings they have given in this interim period, and it is advisable they see the process through to a final order to avoid doubt, even in the event the squatters vacate following the IPO.
For any further information, or if you are a landlord who finds themselves in a situation where squatters have settled in your property, please reach out to the team: Harry Medway at h.medway@rfblegal.co.uk, Rudi Ramdarshan at r.ramdarshan@rfblegal.co.uk, Ben Frost at b.frost@rfblegal.co.uk or Victoria Huxley at v.huxley@rfblegal.co.uk.
Written by Harry Medway.
Harry Medway
Abogado asociado
