Possession of Residential Property: Trespasser or Not?

16 May 2016

The Dispute Resolution Department at Pindoria Solicitors regularly receives instructions from landlords for possession of residential property.

I recently handled an interesting matter, where instructions were received after proceedings had already been issued.  Proceedings were issued on the basis that the occupier had no right to occupy the property; therefore the occupier was a trespasser, or what some would term as squatter (‘the Occupier’).  As from 1st September 2012, squatting in residential property became a criminal offence; landlords now have a choice of going through the Court possession process or approaching the police.

In this instance, our landlord client (‘the Landlord’) went through the Court process.  The Landlord was working aboard and had been for some time and his relative dealt with his business affairs in the UK, including management of the property in question (‘the Representative’).  The Occupier had legal representation and his solicitors contested the possession claim on his behalf maintaining that he was not a trespasser but a tenant as he had been given permission to reside at the property by the Representative which the Representative denied.

The Landlord’s claim was that there was a tenant at the property previously who resided there on the basis of an Assured Shorthold Tenancy, that tenancy had come to an end and notice for possession had been served on the tenant.  This suited the tenant as she was moving abroad, so she gave vacant possession when required.  The Representative duly commenced works on the property for the Landlord and his agents’ personal occupation, however, soon thereafter, the Representative discovered the Occupier at the property, in occupation.

The Occupier contested proceedings purporting to rely on: a copy extract tenancy agreement (which had only been signed by the Occupier himself and not by the Landlord or his Representative), notes made by the Occupier (which he purported were made contemporaneously whilst he paid monthly rent to the Representative) and a police log report (setting out details of police attendance at the property due to an altercation between the Occupier and the Representative).  The Occupier, when defending the claim also issued a counterclaim for disrepair and lack of quiet enjoyment of the property due to the on-going works.

The main issue to be determined by the Court would be whether the Occupier was in fact a trespasser or a tenant.  If the Occupier were to be held to be the latter, namely, a tenant, then he would enjoy and benefit from the protection afforded to tenants under statute, so could only be evicted by serving the required notice for possession and going through the Court process, and even then a tenant has the opportunity raise defence(s) so there would be a likelihood that the Court would not grant the possession order.  This would also mean that fresh proceedings would be required against a tenant as opposed to a trespasser, resulting in further time and costs.  If the former where to be the case, namely, the Occupier were to be held to be a trespasser, then an order for possession should be made by the Court, and depending on the circumstances, this should be forthwith.

In this case, based on the facts and circumstances put before the Court, it was held that the Occupier was a tenant.  The effect of this on its own would have meant that fresh proceedings would have been required.  The Court went to determine that although the Occupier is a tenant, the Representative did not have the requisite authority from the Landlord to grant the tenancy agreement to the Occupier and therefore this was void.  The Court therefore granted a possession order forthwith, dismissed the Occupier’s counterclaim and ordered that there be no order as to costs, meaning that each party bear their own costs.

If you have a similar matter or wish to discuss any possession claim, please contact our Property Dispute Resolution Department.  Please bear in mind that even if you have a situation with similar facts to these, that it does necessary follow that the result would be the same- the Court would look at the specific facts and circumstances before determining whether to grant an order for possession.

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