Interim Possession Orders: A useful remedy?09 Feb 2017
For many commercial landowners, the prospect of trespassers occupying and damaging their premises is a perennial concern. Whilst the usual advice is to obtain a possession order and enforce it using civil enforcement officers, it can often take upwards of three weeks from issue of proceedings to getting the unlawful occupiers removed.
Where, for example, there is significant risk of physical injury to the occupiers, or substantial damage is being caused to the property, three weeks is too long to wait. In these circumstances a landowner should consider whether they can apply for an Interim Possession Order (‘IPO’) as an alternative.
What is an IPO?
An IPO allows a landowner to temporarily remove trespassers from their land pending a full hearing. If, at the full hearing, the Court agrees that the occupiers are trespassing then the order is made permanent.
Criteria for obtaining an IPO
IPOs are only available in limited circumstances. In order to obtain one, you need to fulfil all of the following:
- You must have an immediate right to possession of the premises;
- The affected premises must be either a building, part of a building or land ancillary to a building, not open land; and
- The occupiers cannot be former tenants/licensees of the premises.
If you satisfy all these criteria you may apply for an IPO, but
1. You must act quickly. Unless you make the claim within 28 days of the date you became aware of the occupation you cannot use the IPO route.
2. You must be prepared to undertake that:
a. You can and will pay any damages the Court orders if it transpires that the occupiers have a right to be on the premises.
b You will let the occupiers back into possession if the Court decides they have a right to be there; and
c. Whilst the proceedings are ongoing, you will not damage the premises or any of the occupiers’ possessions that remain on the premises, and will not take any steps to grant any rights of occupation to third parties.
The following timescales are a best case scenario. Whilst Courts will do their best to prioritise IPO applications, they may not have capacity to deal with the matter as promptly as set out below.
The Court issues the claim and simultaneously sets a date for the initial hearing (this hearing must be at least three days from the date of issue). The landowner must serve the claim within 24 hours of issue.
The initial hearing takes place. The Court decides whether the requirements for granting an IPO have been met, and if so, grants an IPO.
The order must then be served within 48 hours of sealing, although in reality the landowner will want to do it on the same day as the hearing.
The occupiers must vacate the property within 24 hours of service of the IPO. Failure to do so is a criminal offence and the landowner can ask the police to remove the occupiers.
Day twelve (or later)
At the second hearing, the Court will either grant a final possession order, or set it aside. The second option will usually only occur when the occupiers have engaged with the proceedings and demonstrated good grounds to set aside the IPO.
If the occupiers vacate within the 24 hour period prescribed by the IPO then there is no need for further action on the landowner’s part.
Should I consider an IPO?
If you are considering obtaining an IPO you need to consider that:
- The eligibility criteria and service requirements are strict and failure to comply will usually result in the Court refusing to grant an IPO;
- IPOs tend to be scrutinised more closely than ordinary possession orders because of the draconian powers they confer upon landowners;
- Until the final hearing, the IPO can only be enforced by the police, not by civil enforcement agents. The police have a discretion as to whether to take action and cannot be compelled to assist;
- If the Court makes an IPO and later decides that the landlord was not entitled to the order, the Court will usually order that the occupiers can return to the premises and the landlord can be ordered to pay costs and/or damages;
There is no absolute guarantee that using an IPO will be quicker than going down the usual possession order route, and in most cases the potential pitfalls of applying for an IPO outweigh the potential benefits. However, if you have just become aware of a potential trespass and you need the trespassers out of the premises as soon as possible, you should consider whether you can use an IPO to provide swift interim relief.
For further advice on IPOs, or any other related matter, call our property litigation team on 0161 832 3434.