Under most construction contracts, the contractor takes on the ground conditions risk. However, a recent case has demonstrated that the risk can fall on the employer.
Vacant commercial and industrial properties are at greater risk due to the very fact that they are vacant, meaning they don’t benefit from daily occupation by tenants and security personnel, and are often in relatively isolated locations.
Why has there been an increase?
One reason for the potential increase in commercial squatting is as a result of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (the “LASPO”). The LASPO made squatting in residential buildings (i.e. houses or flats) a criminal offence, punishable by up to six months in prison, a £5,000 fine, or both, where previously it was purely a civil matter.
However, the LASPO failed to extend the scope of the offence to include commercial premises. This, in turn, seems to have driven squatters away from seeking to occupy vacant residential premises, due to the risk of imprisonment or a fine, and into vacant commercial premises where no such risk of prosecution arises.
There is also a seasonal factor. As winter approaches and the weather takes a turn for the worse, it is likely that more and more homeless individuals may turn to seek shelter in vacant commercial properties, thereby increasing the risk of commercial squatters.
Why can’t we just remove them?
While residential premises benefit from the provisions of the LASPO, the police do not have similar powers when it comes to commercial property.
Ironically, it is, in fact, landlords that can commit a criminal offence if they seek to forcibly remove squatters from their properties. This is as a result of the Criminal Law Act 1977, which states that a landlord seeking to effect re-entry to commercial premises may not use violence to gain entry to the premises if there are individuals present who oppose the entry.
What preventative steps can be taken?
Making a vacant commercial property as inaccessible as possible whilst empty is key to limiting the risk of commercial squatters.
Commercial landlords can take practical steps to achieve this such as:
- ensuring that the property is secure, including locking all entry points and boarding up windows and doorways;
- Investing in an alarm system that links directly to a security company if activated;
- putting lights on timers to give the impression that the property is occupied; and
- hiring a security guard to patrol the premises at periods of high-risk i.e., overnight.
What if they are already there?
It is important that landlords act quickly once they are aware that their building is occupied as some squatter groups are extremely well organised and actively use social media to advertise the fact that a property is vacant or to encourage others to attend on a ‘strength in numbers’ basis. The greater number of squatters and the longer their occupation, the greater the risk that damage will be caused to a property by their occupation.
If landlords discover that their property has fallen foul to commercial squatters, the only real option available is to apply to Court for a possession order.
This can be done in two ways:
- Apply for a Summary Possession Order (SPO) – proceedings usually in the County Court where a hearing will be listed before a Judge often within 5-7 days after the issue of the claim.
- Apply for an Interim Possession Order (IPO) – proceedings usually in the County Court where the aim is to obtain a possession order quickly as an interim measure, pending a full hearing at a later date.
Whether to apply for a SPO or an IPO should be considered on a case-by-case basis, taking into account a number of factors, such as: the urgency for possession, the time since squatters have been in occupation and whether the only remedy sought is possession of the property.
For more information
If you would like advice as to how to limit the risk of commercial squatters or wish to issue proceedings to recover possession of a commercial property, please contact Cynyr Rhys.
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