Possession claims against squatters

The procedure set out in Part 55 of the Civil Procedure Rules 1998, which allows a owner/landlord to bring a possession claim against trespassers (squatters), is the most common method used for the eviction of squatters. It is designed to be a quick and simple procedure for evicting trespassers. 

However, a possession claim against trespassers can only be brought against a person or persons who entered and remained on the property without the consent of the owner/landlord. It does not apply to a claim against a tenant or subtenant when their tenancy has been terminated.[1]

The owner/landlord seeking to regain possession of the premises must make an application to the court for a possession order. Proceedings for a possession claim against trespassers must be started in the county court for the district in which the property is located.[2] However, proceedings may be issued in the High Court if there is a substantial risk of public disturbance or of serious harm to people or property that need to be addressed immediately.[3] An owner/landlord wishing to start proceedings in the High Court must submit a certificate (together with a signed 'statement of truth'), stating the reasons for bringing the claim in that court. The owner/landlord must file a claim form, Form N5, and a particulars of claim for possession (trespassers) form, Form N121. The primary function of the particulars of claim is to state concisely the facts upon which the claimant (landlord) seeks to rely. It must:

• identify the property that is the subject of the claim

• state the landlord's interest in the property, whether s/he is the freeholder or leaseholder for instance, or the basis of the right to claim possession

• specify the circumstances in which the property was occupied without licence or consent[4]

• state whether the claim relates to residential property

• state that the defendant (squatter) was not previously a tenant or a sub-tenant at that property

• provide details of every person who, as far as the owner/landlord is aware, is in possession of the property. If the landlord does not know the name of one or more of the squatters, the claim must be brought against 'persons unknown' in addition to any named defendants (squatters)[5], and if s/he does not have the details of any of the squatters, the claim will be addressed to 'persons unknown' in general.

If there are any witness statements on which the owner/landlord intends to rely in her/his claim, these must be filed together with the claim form, in order to ensure that all the relevant documents are served on the squatters at the same time. The court will fix a date for the hearing when it issues the claim form (ie when it seals the form with the court seal)[6] and service of the relevant documents on the squatter(s) must comply with the specified dates (see service of claim, below).

Where, in a possession claim against squatters, the claim has been issued against 'persons unknown', the claim form, particulars of claim, blank defence form N11 and any witness statements must be served on those persons by:

• attaching copies to the main door or some other part of the property so that they are clearly visible, and

• if practicable, inserting copies of those documents in a sealed transparent envelope addressed to 'the occupiers' through the letterbox, or

• placing stakes in the land in places where they are clearly visible and attaching to each stake copies of these documents in a sealed, transparent envelope addressed to 'the occupiers'.[7] If this method of service is to be used, the landlord must supply the court with sufficient stakes and transparent envelopes.[8]

The relevant documents must be served at least five clear days (including weekends) before the hearing date, in the case of residential property, or two days before the hearing date where the property is non-residential.[9] Although there is no legal requirement on a squatter to file a defence to a possession claim, it is probably necessary for the owner/landlord to serve a defence form at the same time as s/he serves the claim form on the squatter.[10] Furthermore, if a squatter decides to file a defence, s/he must use the standard defence form (Form N11) in order to do so (see the page on defences). It is important that where a squatter has identified a potential defence or defences, s/he is referred to a specialist adviser.

In certain circumstances, it may be possible for the squatter and the owner/landlord to reach some sort of agreement, either before or at the hearing, for the squatter to be allowed to leave the property (for instance, by an agreed date) or for them to continue occupying the property until it is needed for another use.

Where the parties have reached an agreement, it is advisable that this is incorporated into the order made by the court, so that the parties are bound by what they have agreed to. This is known as an order by consent, and in practice it amounts to the squatter agreeing to let the owner/landlord obtain an order for possession, provided that it has conditions stating that the owner/landlord will not use the order until such time as they need the property.

It is unlikely that the owner/landlord will breach the conditions of the agreement, as they will be in contempt of court if they do so.

At the hearing, or at any adjournment of that hearing, the court may either decide the case or give case management directions, specifying the course that the proceedings are to take.[11] In one case,[12] a trespasser litigant in person who had been successful in resisting possession proceedings in the county court was granted an adjournment on the day of the appeal hearing to enable him to clarify his entitlement to legal aid. The Court of Appeal considered that the prejudice to him of not being represented on the appeal was far greater than the local authority's prejudice caused by the delay in re-allocating the property.

If the squatter has a defence that appears to be substantial, directions with regard to the way in which proceedings are to be conducted will be given, and this will include the allocation of the claim to one of the three tracks; the small claims track, multi-track or fast track (see the page Courts structure for further information on the three tracks).[13] In deciding the relevant track for allocation, the court will take a number of factors into account and it will only allocate possession claims to the small claims track if all the parties agree.[14] If the squatter does not have a defence, or s/he loses the case, the court will make an order for immediate possession. Where the squatter has a defence and/or other evidence to support her/his case, but s/he did not have the chance to put this to the court during the hearing, the court may set aside the possession order. In some cases, the court may decide to make an order for possession to take effect at a later specified date. This may be the case where the landlord does not require immediate access to the property, but s/he wants to be able to remove the squatters at a later stage. Before making a deferred possession order, the court has to obtain the consent of all the parties to the proceedings, unless the defendants are service occupiers[15] or licensees under a rental purchase agreement.

If the owner/landlord wants to evict the squatters immediately, they must first obtain a warrant for possession (or a writ of possession if the case was heard in the High Court), because an order for possession alone does not entitle the landlord to evict squatters her/himself. Court bailiffs, not the owner/landlord, must carry out enforcement of a warrant for possession.

If the landlord's claim for possession is successful, they may ask the court to make a costs order against the squatter, to cover the cost of bringing their case to court. However, where the landlord has issued a claim against 'persons unknown', a costs order cannot be made against the squatter, unless their name is subsequently discovered.

In deciding whether to award costs against a squatter, the court will take into account their means and resources, and it is very unlikely that a squatter with no financial means will be made to pay the landlord's court costs.

If a squatter has a defence (in which case they should be advised to file a defence form, which will contain their name), advisers should check to see whether the squatter is entitled to help with legal costs. If a squatter has a defence but is not entitled to help with legal costs, they could be considered by the court to have sufficient means to pay the landlord's costs.

Where an unnamed squatter does not have a viable defence, they should be advised to consider not returning the defence form (which will require a name) and perhaps not attending the possession proceedings, otherwise her/his identity will become known and they may subsequently become liable for costs. See the section on Court costs for further information on costs.