Squatters eviction by interim possession order

This method of eviction, which provides a very quick remedy, was introduced under the Criminal Justice and Public Order Act 1994 as a new form of interim possession order that can only be granted against trespassers. The interim possession order procedure has been incorporated into Section 3 of Part 55 of the Civil Procedure Rules 1998.

An owner/landlord seeking to evict squatters can apply for an interim possession order under Part 55 as an additional measure to an ordinary possession order, although interim possession orders cannot be used against the majority of squatters (see below).

Crucially, failure to comply with an interim possession order is a criminal offence – once an interim possession order is served on a squatter, s/he must leave the property within 24 hours to avoid committing a criminal offence for which s/he can be arrested and charged by the police.

The procedure set out for the application of interim possession orders imposes a number of restrictions, which make interim possession orders less accessible to owners/landlords than ordinary possession claims. These restrictions are that:[1]

• interim possession orders can only be used for the recovery of premises and not open land

• the interim possession order procedure is only available to landlords who start proceedings within 28 days of first knowing that the squatters are in occupation, or 28 days from when s/he should reasonably have known of the occupation

• interim possession orders can only be used to evict squatters who entered the premises without the consent of the owner, not against ex-licensees or anyone who was allowed in by a tenant (even if the tenancy has come to an end) or anyone who has ever been given any kind of permission to occupy the property from someone who had a right of possession

• the owner/landlord must have owned or been a lessee or tenant of the property throughout the period of the squatters' occupation, which means that a landlord who has just bought the property or started her/his lease or tenancy after the squatters' occupation cannot apply for an interim possession order to evict squatters

• the owner/landlord must have an immediate right to possession of the property and there must therefore be no other person with an existing licence or tenancy.

The interim possession order procedure is as follows:

• application

• service

• hearing

• execution.

A owner/landlord intending to use the interim possession order procedure to recover her/his property must apply to the court for an interim possession order. The owner/landlord must file a claim form, Form N5, and an application notice for an interim possession order, which will include the owner/landlord's written evidence, Form N130.[2] Alternatively, s/he may supply written evidence in a separate witness statement.

Once all the relevant documents have been filed, the court will issue the claim form and the application for the interim possession order and it will set a date for the hearing of the application.[3] The hearing of the application will be as soon as reasonably practicable, but no less than three days after the date of issue.[4]

The owner/landlord must serve on the occupiers the claim form, the notice of application, together with the written evidence in support, and a blank form for the occupiers' witness statement(s).[5] This must be done within 24 hours of the issue of the application. The landlord must also file a certificate of service in relation to the relevant documents that s/he has served on the squatters either before or at the hearing, with the court.[6]

Service can be achieved by attaching copies of the relevant documents to the main door or other conspicuous part of the property, so that they are clearly visible and, where practicable, inserting copies of those documents in a sealed transparent envelope addressed to 'the occupiers' through the letterbox. Alternatively, the owner/landlord may serve copies of the documents on the occupiers by placing stakes in the land in places where they are clearly visible and attaching to each stake copies of the documents in a sealed transparent envelope addressed to 'the occupiers'.[7]

Failure by the owner/landlord to follow the proper service procedure may provide the squatters with a defence to the proceedings.

At any time prior to the hearing, the squatter may file a witness statement in response to the application,[8] although the squatter may attend the hearing, irrespective of whether or not s/he has filed a witness statement.

In deciding whether to grant an interim possession order, the court will have regard to whether or not the landlord has given, or is prepared to give, certain undertakings to the court in support of her/his application. These appear in the prescribed form of witness statement, and include undertakings to:

• reinstate or pay damages to the occupier if the court later finds that the landlord was not entitled to the interim possession order, and

• agree not to damage or re-let the property or damage the occupier's possessions before the final determination of the possession proceedings.[9]

The court will make an interim possession order provided that:

• the owner/landlord has followed the proper service procedure, and

• all the relevant conditions for an interim possession order are met, and

• the landlord has given adequate undertakings in support of her/his application.[10]

On making an interim possession order, the court will set a date for the hearing of the claim for possession, which must be at least seven days after the date on which the interim possession order is made.[11]

If the court is not satisfied that the conditions are met, or with any undertakings made, then no order will be made. The court will set a date for the claim to be heard under normal possession proceedings, under Section 1 of Part 55 of the Civil Procedure Rules (see the page on claims against trespassers for details), unless it decides otherwise.

An interim possession order must be served within 48 hours of being made by the court[12] and requires that the squatters leave the premises within 24 hours of service of the order.[13] Failure to leave is a criminal offence.[14] However, if the interim possession order is not served on the squatters within the 48-hour time limit, no offence will have been committed and the squatters may apply to the court for directions for the claim for possession to continue under the normal Part 55 Civil Procedure Rules, Section 1 procedure (see the page on claims against trespassers for details).[15]

The interim possession order will expire on the date of the hearing of the claim. At the hearing, the court may make any order it considers appropriate and may, in particular:

• make a final order for possession or

• dismiss the claim or

• direct that the matter be dealt with under the Section 1 procedure for possession claims or

• enforce any of the owner/landlord's undertakings.[16]

If a final order for possession is made, the interim possession order will cease to exist and if the owner/landlord wishes to evict the squatter immediately, s/he must apply for a warrant, and the eviction must be carried out by bailiffs. Once the final order for possession is made, the squatter will not commit a further offence by remaining in the property.

A squatter can apply for the interim possession order to be set aside before the date of the hearing, on the grounds of urgency if s/he believes that s/he has a defence. However, the squatter must leave the property before making the application, which must be supported by a witness statement.[17] Where such an application is made, the court may set aside the interim possession order and if this is the case, there will be no further hearings. If the court decides not to set aside the interim possession order, it may take the opportunity to treat the hearing as the final hearing, at which a final possession order may be made.

It is a criminal offence for anybody to trespass on a property that is subject to an interim possession order unless:[18]

• the trespasser leaves the premises within 24 hours of the interim possession order being served and does not return, or

• a copy of the order is not fixed to the premises.

It is also an offence for a person who was in residence at the time of service of the notice to return to the property within one year of the expiry of the order.

These offences can be punished by a fine of up to £5,000 and/or a prison sentence of up to six months. A uniformed police constable with reasonable cause to believe that a person is guilty of one of these offences can arrest the person without a warrant.