A Simple Guide to Trespass

What is Trespass?

Trespass happens when someone enters a property without the permission of the person who is entitled to possession of the property. It is within such circumstances that property litigation will be required.

A trespasser may also be someone who has been allowed to enter the land, but then the permission has been withdrawn, and the person has not left the land.

Trespass can occur in a variety of ways. It can happen on open land or in residential or commercial properties. 

Is trespassing a criminal offence?

Trespass itself is usually a civil wrongdoing. However, there are certain forms of trespass which form a criminal offence. For example, squatting in a residential building or trespassing on land with vehicles.

How do I recover possession?

It may be possible to recover possession of the land without the need to issue any court proceedings; however, in most cases, the safest approach is to obtain a court order for possession.

What is the procedure? 

A claim for possession must be issued in the County Court, local to the property unless there are rare circumstances as to why the claim should be issued in the High Court. The circumstances may include the following:

• When there are complicated disputes in relation to the facts.
• There are points of law which are of general importance, or
• There is a substantial risk of public disturbance or serious harm.

A claim form will need to be drafted, along with Particulars of the Claim and Witness statements. These documents will set out further details of the claim and state the circumstances surrounding the claim.

The court will fix a date for a hearing when the claim is issued in court. At the hearing, the court may make an order for possession or give any appropriate case management directions.

If a possession order is granted and the trespasser does not vacate the property, the landowner must apply to the court for a warrant of possession and instruct court bailiffs to physically evict the trespasser.

Remedies 

There are a number of remedies that are available to landowners who find a trespasser has unlawfully occupied their property. They may include and are not limited to:

• Repossession as referred to above.
• The landowner will be entitled to receive damages that will compensate for their loss.
• An injunction in the event that trespass is being threatened but the land has not yet been occupied.