Common Law Eviction | The Pros and Cons

For landowners and their legal teams, the opportunity to evict trespassers using the age-old common law, is a lifeline to getting property back quickly and cost effectively.  This is the definite PRO of this legal remedy and we can say that common law evictions are alive and well in 2023.  Every week somewhere in England and Wales, Shergroup Enforcement teams are carrying out a common law eviction – in a controlled, and safe operation.

But we wanted to add some context to the idea of when a “common law eviction” as opposed to an eviction under a court order becomes possible and the decision making process we go through as a legal and enforcement team when guiding our clients down a particular choice.

First off, we understand the serious impact that trespassers and protestors can have on commercial landowners in England and Wales.  We are continually sharing with our community the opportunity to evict trespassers without a court order.  Often people want this service as an expediency.  Trespassers have arrived on their land and they need to get them off.  Perhaps it’s a supermarket car park, or a school playing field.  We speak to managers in local authorities, school bursars, solicitors, and property managers from across the spectrum of business on what is and is not possible when it comes to the simple idea of “common law” eviction.

Like you we watch the news as yet another political issue becomes the subject of an expensive and protracted protest.  We don’t judge the political viewpoint – but we do look at the cost involved in obstructing traffic, construction and people.  Someone, somewhere is meeting the bill of this protest whether it be through national or local taxation, or worse still through the landowners own pocket.

These business obstructions, incidents of fly-tipping, and other illegal activities we know first-hand are extremely expensive to deal with.  Putting aside the actual eviction costs, there are so many additional costs that have to be included in an eviction operation.  In 2021 we evicted protestors at a small development site in Islington, London.  It created a massive headache for council officers who were at pains to carry out a lawful and careful eviction.  Ultimately the cost of the exercise fell on the local authority, and was paid for by the council taxpayers of the Borough.

This protest was tiny in comparison to the one just up the road at Euston, where protestors had burrowed their way under land in protest at the building of the HS2 railway.

We understand that this high-profile protest resulted in a complex and dangerous eviction operation that cost almost £3.8 million to execute.  Good business for the bailiffs involved (who weren’t Shergroup) but a cost that fell to the Treasury to underwrite – and therefore a cost to taxpayers across the board.

So, what can you do as a landowner to protect yourself from trespassers turning up on your land and costing you large sums to remove? 

Well there are some very practical steps you can take depending on the type of site you have so here are our thoughts based on years of managing evictions and post eviction security

Secure your site | whether its concrete blocks across the entrance to an open field, or CCTV and security guards on patrol – nothing deters protestors more than the presence of physical security.  Of course this is a cost to you as the landowner so a cost/benefit analysis should be done to consider whether the cost of securing your site is going to be worth it versus the cost of trying to remove protestors.  We see plenty of landowners who decide not to implement security measures just based on cost and they live with the risk that their site may be subject to trespass.  Security measures including camera surveillance are most effective now than ever before so its always worth having a chat with one of our experienced team on the sort of measures that can be put in place to secure a site if that reduces the risk of trespass.

Remove trees from open sites where protestors may have environmental concerns | We love trees so we are not in favour of removing them without good reason.  That said they create a significant risk on any site where trespassers are present.  Where possible and without breaching any Tree Preservation Orders – cutting down trees to eliminate the risk of tree houses is advice we have given to many landowners including supermarkets and airports.  Once a protestor has made his or her treehouse out of old pallets and a bit of tarpaulin – it is going to cost thousands of pounds for you to bring that protestor back down to the ground.  Anything over 6 feet in height will require a “working at height” team to safely bring the person back to terra firma and it is hundreds of pounds an hour to have them on site managing the safe removal of a person up a tree or “locked-on” to a tripod.

Anticipate underground openings | These may include culverts, sewers, tunnels and basements on your site. We encourage landowners to take steps to board the entrances up and prevent anyone getting to them who is not authorised to do so.

In the Islington site mentioned above, protestors dug a tunnel down to a culvert about 10 feet underground and locked on with home made apparatus which then took about 10 hours of our “confined spaces” team to dig the person out.  How the protestor got to the culvert remains a mystery!  But it led to thousands of pounds being added to the local authority’s bill for the eviction.

And aside from the cost, what people don’t see is the level of stress that this type of operation causes.  For us as enforcement professionals it goes with the territory, but for the clients it is nerve racking.  In a local authority situation, officers have to brief members who are getting calls from constituents about what the heck is going on.  Officers responsible for health and safety, public relations, community relations, planning, development, and overall responsibility for the project are sitting on calls looking for updates for their departments.  The police also have to be heavily involved in the planning process and understand and agree to the eviction action being taken.  A wrong move can create a breach of the peace, which the police are required to manage.  It is a worrying and concerning event. We never see clients who do not take this type of operation seriously. The issue of cost, compared to the safety of the trespasser(s), becomes secondary.

Call Shergroup as soon as the trespass occurs | We don’t encourage you to put yourself or your staff in the frontline when it comes to negotiating with trespassers to leave your site.  You can outsource that to Shergroup’s established enforcement team who have been on the very worse of enforcement sites, and who have a knack of asking people to leave so that eventually they do!  As soon as a caravan appears that shouldn’t be in your car park, field, or site, that’s the time to call Shergroup to see what can be done.  As the landowner you can you use the self-help remedy of “common law” eviction but that doesn’t mean you do the evicting and we don’t advocate that you do.

How Does “Common Law” Eviction Work?

The great English common law – built on centuries of the law coming to the aid of landowners recognises the right of a landowner to ask a trespasser to leave land where no permission has been given to the trespasser to enter.

Depending on a risk assessment (which Shergroup carries out for its clients) then usually the serving of notice that eviction is imminent (say within 24 hours) is enough to encourage travellers to move on.  Sometimes this works for protestors but in our experience the difference between travellers and protestors is very different.  Travelling communities accept more often than not, that they will have to move on at some point and will agree to do so without too much of a problem.  Protestors on the other hand, have a point to make, and they often will not move, however polite the negotiation until the landowner is put to the cost of obtaining a court order, which is then executed by High Court Enforcement teams executing the same.

Travellers will move on after notice has been given.  If for any reason they decide to try and stay, then following a short risk assessment, Shergroup Enforcement teams will start removing vehicles by towing them off the site.  It usually only takes one vehicle to be removed to get the point across that it is time to go.  This is an example of the “reasonable force” that may be used by the landowner to remove trespassers from the site.  To paint a picture of what this looks like in practice we encourage you to watch our TV show “The Enforcers” which was shown on ITV showing a common law eviction taking place.

What Happens If Trespassers Have Set Up Camp?

Most trespassers do set up some form of “camp” on the site they want to stay on.  For travelling communities, the camp consists of caravans, and vehicles and by its very nature it is easier for the landowner to take steps to carry out a common law eviction in this situation because the vehicles and caravans can be towed off the site.

What becomes more difficult is where trespassers have set up their camp in trees and tunnels, or have “locked-on” to fencing, or other construction equipment such as diggers, which means they will not move themselves and we cannot remove them easily.  What we can say is that we have a solution for every type of obstruction, whether it’s a tunnel, superglue, or being stuck up a tree but we do have to risk assess a situation to see if we can remove one person or a number of people using “reasonable force” in a safe and contained environment.

Occasionally this is possible – in 2022 we removed students who were protesting at a university site in London using common law powers.  It wasn’t an ideal situation – but the time delay in the High Court to get an Order for Possession was itself creating a safety risk.  This is something that judges often miss in their deliberations on this type of situation.  The landowner and their legal team are doing everything possible to create a safe environment to get their land back but time is against them.  In a protest situation delay leads to more people joining the protest which in turn means the opportunity to carry out a common law eviction is lost.  Too many people, creates an environment which is not conducive to common law eviction.  Protestors in such situations put themselves in jeopardy of hurting themselves and others, and so a Court Order, and Writ of Possession is required, to authorise and cover the eviction operation.  The common law eviction opportunity is lost.

Moreover, as the opportunity to carry out common law eviction is lost, so the legal process takes over and the landowner must make a claim for possession to the County Court, or where there is a significant risk involved, directly to the High Court.

Suffice to say we don’t think the law works quickly enough to protect an innocent landowner from the risk and cost of a possession action which has to be taken through the courts.   This is why “common law” eviction is necessary – it alleviates the cost, delay and risk of going to court but the circumstances have to be right – and the eviction must be carried out safely.

What is the Role of an Injunction in the Eviction Process?

If your trespassers are not excluding you from your land but are protesting, you may be able to obtain an injunction requiring them to leave.  We don’t see many injunctions and we put this down to the cost of applying for one, and the technical expertise needed to make the application in the correct form.

However once an injunction over land is obtained and it is served, then anyone violating the terms of the Order commits a criminal offence.

Injunctions can also be obtained in advance of any anticipated trespass.  So if you are concerned that trespassers may set up camp on your land or are threatening to do so then an injunction can be obtained to deter them from doing so.  We have seen airports, energy companies and local authorities all successfully apply for injunctive relief in the face of anticipated trespasser action.

Injunctions can also work to stop trespassers who are already on your land, going wider than their original footprint.  You as the landowner must demonstrate that there is “a real and imminent risk of further trespass, not just a concern about the possibility”.

Summing Up

Dealing with trespassers or protestors on commercial land can be challenging, and it is vital to take swift and decisive action.

If it can work, then the opportunity to use the common law eviction process is a definite PRO for a landowner.  It is speedier, cheaper, and just as safe as a full blown eviction carried out under a court order.

The CON is the limited use of the process – it is highly unlikely to be available where there is a protest going on and protestors have built a camp at height or in confined spaces.  The best use of the process is particularly in relation to travellers for all the reasons explained above.

One phone call to Shergroup’s Enforcement TEAM will help you decide if common law is an option, or whether you need to take it a step further and apply for a Court Order.

Call us today on 0203 588 4240 or message us at [email protected].  You can also download our free guide to “Sticky Trespassers” .

To see Shergroup Enforcement Agents in action carrying out a common law eviction watch us on Shergroup TV in ITV’s “The Enforcers” .

Ultimately if in doubt don’t take any self-help action until you have spoken to us about your options and we can guide you on your next safe steps.