COVID-19 and possession claims - a squatters' paradise averted?

COVID-19 and possession claims - a squatters' paradise averted?

COVID-19 and possession claims - a squatters paradise averted?

ALERT: This article reflects the law at the time it was written. Under CPR 55.29 the stay on all possession proceedings and the enforcement of possession orders has been extended to 23 August 2020. The stay will not apply to claims against trespassers.

The Government has taken various steps to prevent landlords from evicting their tenants during the Coronavirus pandemic, one of which was the introduction of Practice Direction 51Z (“PD51Z”) into current court rules.

PD 51Z was introduced on 27 March 2020 and had the effect of largely putting on hold all possession proceedings brought under Part 55 of the Civil Procedure Rules until 25 June 2020.  It applies to both residential and commercial premises.  As well as protecting residential and business tenants in line with Government policy, the objective was to halt the progress of evictions during the pandemic so as not to endanger public health and in recognition of limited court resources during this time. 

Licence to trespass?

One of the more startling consequences of the Practice Direction as originally drafted is that it also prevented claims against trespassers progressing through court until 25 June 2020.

Owners and occupiers of commercial property who have been victims of squatting know the high price in terms of time and cost of removing trespassers. The eviction process can be costly and there can be significant damage to the property to deal with after trespassers are removed.

An urgent amendment to the Practice Direction has now been introduced to close this surely unintended loophole.  The general stay on possession proceedings has been amended effective from 18 April 2020, to clarify that the stay does not apply to a claim against trespassers to which rule 55.6 applies. 

Prevention better than cure

Nonetheless anyone responsible whether as owner or tenant of unoccupied commercial premises should wherever possible take steps to secure their property against potential trespassers in the first place, where it is safe to do so.  This is particularly relevant with so many commercial premises currently vacated during the lockdown.  This could be retail or hospitality premises, industrial space or office buildings and unsecured car parks and forecourts might be targeted.

Those affected by squatters on commercial premises might be able to avail themselves of self help remedies to remove trespassers through bailiffs.  There are likely to be real challenges for bailiffs operating at this time, where removal of trespassers might require close physical contact.

In the pre-lockdown world in some circumstances the police might have been prepared to assist with the removal of trespassers from commercial property.  In current times the police may prefer that people are not moved on and will also be facing resourcing issues and have different priorities, so are unlikely to assist.

Other lockdown considerations

As well as ensuring premises are secure and carrying out regular inspections where possible, businesses should also ensure any post delivered is checked regularly.  As we covered in our earlier piece here, important notices can be delivered and be legally effective even if no one is there to receive it and businesses need to keep on top of this.

To be able to exit lockdown without the additional burden and cost of dealing with trespassers or the consequences of missed legal or contractual deadlines from uncollected notices received by post, businesses will still need to actively manage their empty premises and have appropriate policies in place, until the end date is known. 

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