The ramifications of the coronavirus pandemic continue to affect the real estate sector. One only has to look around usually busy high streets, retail parks and industrial zones to see closed signs, drawn shutters and bolted gates. With so many buildings sitting empty, the question of how to protect against squatters and unlawful occupants during this period will be at the forefront of many minds.
Following the Coronavirus Act 2020 (which received Royal Assent on 25 March), it has been confirmed that the courts will unilaterally suspend all ongoing possession actions. A new Practice Direction (an amendment to court rules) is in place, bringing the decision into effect.
The new Practice Direction goes further than the provisions of the Act, which simply extends the notice period for most tenants. It provides protection to a much wider range of occupiers than the Act, by staying the following claims in addition to residential and commercial landlord and tenant matters:
Importantly, however, and following some initial uncertainty, on 20 April 2020 the Practice Direction (51Z) was further amended so as to make it clear that trespasser actions were excluded from the reach of the stays referred to above.
As such, the old saying ‘the best form of attack is defence’ will apply here. It may seem obvious, but there are some cost effective things landlords can do now: ‘Be wise today so you don’t cry tomorrow’ springs to mind. There are some simple, practical considerations for landlords around securing property and mitigating possible effects. These include:
Landlords may want to consider the following security measures to mitigate the risks of squatters entering their property:
Landlords will be wanting to preserve cash flow at all costs during these difficult periods. A tenant out of occupation due to trespassers will be less able to pay than a tenant in occupation who is in a position to start trading again as soon as restrictions are lifted and the public health situation allows. As such, landlords might want to think about reaching out to tenants to discuss with them the security measures in place in relation to leased property. Rent deposit draw downs, if agreed between the parties, could be used to temporarily fund beefed up security measures for vulnerable property; the tenant probably did not envisage the unit sitting empty when they installed their current security scheme.
Ensuring compliance with insurance obligations, mitigating effects
Landlords and tenants should be carefully considering their existing insurance policies to ensure that cover will continue to be in place, eg:
Dealing with trespassers using self-help
Self-help is open to landlords looking to regain possession from squatters, and in the pre-coronavirus world would often be the first port of call as the quickest and cheapest remedy. The first stage involves instructing bailiffs to serve a Notice to Leave on the squatters at the property, and often attending site and engaging the trespassers in a dialogue. Where the trespassers are travellers ‘passing through’ and largely behaving lawfully, bailiffs are often able to get access to the site (thereby reassuring the landowner) and use their powers of persuasion to regain possession peaceably.
Special considerations will apply during this period. For example, bailiffs will need to be careful to use social distancing measures during any site visits and may need to work more closely with local authorities and police in relation to peaceable re-possession. Experienced, well-trained bailiffs who can mobilise quickly will be worth their salt, but landowners should prepare for bigger bills and longer lead times due to complexities arising as a result of the virus.
In reality, many trespassers will have some awareness of the landowners’ inability to remove them (see more on this below). That said, sensitive and well thought-out interaction with trespassers by bailiffs and a decent budget for monitoring trespasser activity might reduce losses from theft and other types of criminal damage if landowners move quickly.
Dealing with trespassers who commit criminal offences with police assistance
Under the Criminal Justice and Public Order Act 1994, police have powers to:
The measures aimed at preventing the spread of Covid-19 will complement these powers where there are groups of trespassers (eg holding raves).
The person reporting the offence under the Act will be well advised to draw as much attention as possible to how the behaviour is also in breach of the current government guidance in relation to the spread of Covid-19 in order to get police attention and resource.
Dealing with trespassers – proceedings during the current UK lockdown
The new Practice Direction provides that: “All proceedings for possession brought under CPR Part 55 and all proceedings seeking to enforce an order for possession by a warrant or writ of possession are stayed for a period of 90 days from the date this Direction comes into force.”
Where previously (until 20 April 2020) the effect of the new Practice Direction was that while claims against trespassers might be issued, they were not to progress until June 2020.
Since 20 April 2020, however, the amendment to the Practice Direction now makes it clear that squatter proceedings can proceed. The amendment (at para. 2A) states: “Paragraph 2 does not apply to (a) a claim against trespassers to which rule 55.6 applies; (b) an application for an interim possession order under Section III of Part 55, including the making of such an order, the hearing required by rule 55.25(4), and any application made under rule 55.28(1); or (c) an application for case management directions which are agreed by all the parties.”
This means that regular trespass proceedings can now be litigated, along with proceedings against trespassers using the procedure for interim possession orders contained in section III of CPR Part 55.
Para. 3, PD 51Z confirms that, for the avoidance of doubt, claims for injunctive relief are not subject to the stay in paragraph 2, and the fact that a claim to which paragraph 2 applies will be stayed does not preclude the issue of such a claim.
Historically, the High Court processes for seeking urgent, out of hours, without notice relief have been proven to work reasonably well. The High Court duty scheme has been in operation from some years, and will connect legal advisors making urgent applications to a High Court judge at home with, usually, a minimum of fuss. By putting in place a duty of full and frank disclosure and a high threshold for ‘urgent’ and ‘without notice’ matters (with the result that it is almost impossible to be heard by a judge out of hours without giving some sort of informal notice to the other party, save where the facts require secrecy, such as in freezing order cases) litigants have had the comfort that they can reach a judge if necessary.
When applying for urgent injunctive relief, one of the key issues to consider in the case of squatters is who exactly the proceedings are to be issued against, and against whom relief will be sought: the court will not grant relief against the world at large. In squatter matters, it can be hard to identify the persons against whom the proceedings are being brought by name. Recently, the courts have been stricter when granting injunctions against ‘persons unknown’ and require the claimant to be able to point to a class of ‘persons unknown’.
There has been a distinction made between the two types of class of ‘persons unknown’ set out into two broad categories:
The distinction is that in the first category the defendant is described in a way that makes it possible in principle to locate or communicate with them, and to know without further inquiry whether he is the same as the person described in the claim form, whereas in the second category it is not.
Recognising this issue, the Court of Appeal in Boyd and another v Ineos Upstream Ltd and others  EWCA Civ 515 has set out further guidance of the issues that will need to be considered by the courts when granted an injunction. These are:
The guidance given in Boyd will help to protect landlords against delay in obtaining an injunction. Landlords would be well advised to consider whether they can answer the following questions.
In short, as ever, prevention is better than cure. While landowners will not relish extra expenditure now to secure property, it may be a case of ‘spend a penny, save a pound’. In the first version of this article (published prior to the amendment of 20 April 2020 which made it clear that trespasser proceedings were excluded from the scope) the real estate team queried why it was appropriate to provide effective security of tenure to trespassers, and are pleased to see that in fact this was more an unintended consequence than a public policy measure. The right to seek possession against trespassers must be upheld, and is the only way to give proper regard to landowners’ rights to peaceful enjoyment of their property (under Article 1, Protocol 1 of the Human Rights Act 1998, a qualified right).
That said, the Practice Direction is still extraordinary in its reach. It represents one of the most intrusive interferences in commercial relationships (even in these unprecedented times) across any industry, and the fact remains that landowners are being expected to tolerate such interference in a way that other groups are not.
On 30 April 2020, the Court of Appeal (Vice President Underhill LJ, Simler LJ and Vos J, Chancellor of the High Court) heard an appeal against the effect of the practice direction in Arkin v Marshall. Arkin, it is understood, is a case concerning a mortgage repossession, and was leapfrogged to the Court of Appeal and expedited. It is understood that the appeal was made on the basis that the Practice Direction is ultra vires, and that it does not prevent the Court from lifting the stay on a case by case basis, should it be asked to do so. No doubt landlords will be watching the decision carefully.