This case, although quite rare was in our view certainly interesting and was one that made the mice in our heads revolve on the spinning wheel at great speed and for long periods of time. That being said, full credit must go to Evicthem as they did the vast majority of work.

Background

During January 2010, the landlord (KT Property) was approached by a prospective tenant but he was under 18 and so could not be granted an assured shorthold tenancy (see here). The local authority stepped in and agreed to rent the property from the landlord for a period of six months whilst the tenant became 18, the intention being that the landlord would then offer an assured shorthold tenancy to the occupier (subject to there being no problems during the six months).

On 11 January 2010, the landlord granted a contractual tenancy to a subsidiary of Bristol Council for a period of six months. They then placed the defendant into the property.

At the end of six months, they stopped paying the rent (most likely quite rightly because the tenancy had come to an end). The landlord though was unsure as to the current position and because he had demanded rent after the end of the tenancy, a safe route was taken and a notice to quit was served on 22 September 2010 to ensure the tenancy was truly at an end.

After expiry of the notice to quit, the landlord offered an assured shorthold tenancy to the occupier defendant but he refused to sign or accept the tenancy.

It should be noted that the landlord was perfectly happy with the occupier but neither they nor the council were paying any rent and the council had not given back the property with vacant possession so clearly it was a situation that needed resolving somehow.

This left a difficult question. What was the position of the occupier? A local authority can only grant a secure tenancy and not an assured shorthold tenancy but was this still in existence when the tenancy between landlord and the council ended? If so, was the landlord stuck with a secure tenant for life? Or, was it possible for the secure tenancy to convert into an assured shorthold tenancy?

Where [amember_protect levels='keywee' user_action='error' user_error='amember_error_default_user' visitor_action='error' visitor_error='amember_error_default_guest']there is a tenancy and sub-tenancy like this situation, the common law position (as was graphically expressed) is that the branch falls with the tree [Moore Properties (Ilford) Ltd v McKeon (1976) 1 W.L.R. 1278] so when the head tenancy ends, all sub-tenancies underneath also end. In this case, there was nothing to suggest that this common law principle didn’t apply.

Note: if the sub-tenancy was lawfully granted on an assured shorthold tenancy, the occupier would become the tenant of the head landlord [s.18 Housing Act 1988] but that wasn’t the case here.

The occupier in this case was not liable to pay rent because all tenancies had ended and there was no legal relationship between head landlord and occupier. This also meant technically, it was exempt from the requirements of a court order under Protection from Eviction Act 1977 but this was not worthy of risk.

Therefore, the procedure chosen was the trespasser procedure on the basis that the defendant was nothing more than a trespasser. This meant a hearing would be held within around seven days of the application so was a useful remedy. The claimant gave a letter before action to the defendant before any proceedings were commenced making it absolutely clear that they really needed to seek urgent legal advice.

Held

At the hearing, the judge had to ask the landlord to come back in an hour whilst he “called a friend!” The court ordered possession and held that the occupier was a trespasser due to the “branch falling with the tree” and the failure by the defendant to accept the assured shorthold tenancy offered by the landlord.

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The claim form should be sent to the county court nearest the location of the property.

Two forms are required:

Claim form N5

Particulars of claim N121

Examples of the completed forms are available here [amember_protect levels='keywee' user_action='error' user_error='amember_error_default_user' visitor_action='error' visitor_error='amember_error_default_guest']which also contain instructions on completion:

Example of N5

Example of N121

Any witness statements or evidence you intend to rely on must be filed at the court with the claim form.

The cost of the claim is £175.00. A cheque will need to be made payable to “HMCTS”.

Possession order in respect of neighbouring land

In certain circumstances it may be possible to obtain an order for possession not only in respect of the land occupied by the trespassers but also in respect of other land owned by the claimant to which trespassers might go. In Drury v Secretary of State for the Environment Food and Rural Affairs [2004] EWCA Civ 200 the defendants had trespassed in a wood managed by the Forestry Commission. An order for possession was granted in respect of that wood and 30 other areas of woodland that the claimant thought the defendants might occupy. The Court of Appeal set aside the judgement in that respect as going too far. There was not enough evidence to show that there was a real danger that the defendants would enter the other areas. However, the decision did leave open the possibility that a more limited order in other cases might be appropriate:

“Although there may be difficulties in knowing precisely where to draw the line in particular cases, a line has to be drawn somewhere. That should be done by the process of a common sense assessment of the whole situation, taking account of the past conduct of the trespassers and their likely future conduct with respect to the claimant’s land. If there is convincing evidence of a real danger that actual trespasses will be committed on other land of the claimant, a wider form of possession order may be justified. It should be made only in cases in which (a) trespasses have already been committed on an area of the claimant’s land and (b) it is necessary to provide the claimant with an effective remedy in respect of the danger of serial violations of the right to possession of other areas of his land by persons who neither have, nor, indeed, even assert, any right to enter into possession of the claimant’s land. As explained by Wilson J a quia timet injunction against individual persons in such a situation would not be an effective remedy for dealing with a situation.” (Mummery L.J., [para 36).

"The further the separation of parcels of land, the less obvious the need for inclusion of the far parcel in the order. Any similarity in the characteristics of the land, its use and its attractiveness to a class of trespassers will be material. If, for example, one house in the terrace is unlawfully occupied, it may be appropriate for the order to include the other empty houses in the same terrace. The size of the estate itself might be a factor in extending or limiting the ambit of the order. All the features of the claimant's land are material to the need for the order to define how far the writ will run." (Ward L.J., para 44)

Date of hearing

The court will fix a date for the hearing when it issues the claim form. There is no specific time period mentioned in Part 55 but as a matter of practice the hearing date will be much closer to the issue date in trespasser claims than in other cases.

Time for service

In the case of residential property the defendant must be served with the claim form, particulars of claim and any witness statements not less than five days before the hearing date. (Compare this with 21 days for a normal possession hearing, which is why in practice the hearing date is usually quicker).

Method of service

Where the claim is issued against "persons unknown" there are specific rules for service by attaching the documents to the main door or some other part of the land so that they are clearly visible and if practicable, inserting them in a sealed transparent envelope to the occupiers through the letterbox. As an alternative, service may be effected by placing stakes in the land where they are clearly visible with the documents attached (CPR 55.6). The court will effect service if the claimant wishes but it will be necessary to provide sufficient stakes and transparent envelopes (PD 55, para. 4.1).

Response by the defendant

The defendant does not need to respond. There is no requirement to serve an acknowledgement or a defence. He is entitled to turn up and defend the claim (CPR 55.8).

The order

Where the respondent entered into the land unlawfully the court has no power to postpone the order for possession unless the applicant consents to such a postponement (McPhail v Persons Unknown [1973] Ch. 447; Swordheath Properties Ltd v Floydd [1978] 1 W.L.R. 550). Although, it should be mentioned, section 89 Housing Act 1980 (which governs that possession of any land should not be postponed more than 14 days or up to 6 weeks in cases of exceptional hardship) would seem to apply to trespasser cases as it is not listed as an exclusion.

After the hearing

A warrant or writ of possession to enforce an order for possession may be issued at any time after the making of the order but not before the date on which possession is ordered to be given (CCR Ord 24 r.6; RSC Ord 113 r.7). No warrant or writ of possession will be issued after the expiry of three months from the date of the order without the leave of the court.

The court bailiff enforcing the warrant may evict any person he finds on the premises even though that person was not a party to the proceedings (R v Wandsworth County Court Ex p. Wandsworth London Borough Council [1975] 1 W.L.R. 1314). Where a person who has been evicted returns, the applicant may apply for leave to issue a warrant/writ of restitution [para 29.008 Residential Possession Proceedings 7th Edition].

Part 55 Civil Procedure Rules

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“a possession claim against trespassers’ means a claim for the recovery of land which the claimant alleges is occupied only by a person or persons who entered or remained on the land without the consent of a person entitled to possession of that land but does not include a claim against a tenant or sub-tenant whether his tenancy has been terminated or not;” [CPR 55.1(b)]

An “occupier” of premises has great powers in dealing with trespassers. However, normally where a landlord (who is not an occupier) turns up at a property to find persons in occupation, a possession order will normally be required. The hearing date for trespasser claims is normally much quicker than a tenancy case and is detailed below.

This page covers the following examples:

Two occupants of a property where only one is named as a tenant. Tenant vacates, leaving the other occupant in possession

Tenants vacate but give the keys to another person(s) who takes up occupation after the tenant has surrendered the tenancy.

Landlord turns up to an empty property to simply find persons are in occupation (whether by forced entry or not)

Position of persons in occupation other than a tenant

[amember_protect levels='keywee' user_action='error' user_error='amember_error_default_user' visitor_action='error' visitor_error='amember_error_default_guest']Where a tenant (of any type) shares occupation of his accommodation with another that other person will invariably be a licensee. For an example see Monmouth Borough Council v Marlog [1994] 2 E.G.L.R. 68, CA where the tenant went into occupation and used one bedroom, accompanied by the defendant and her two children who used two bedrooms. The kitchen, bathroom and living accommodation were shared:

“Where two persons move into residential premises together under a tenancy granted to one but not the other of them, each occupying a bedroom or bedrooms and the remainder of the premises being shared between them, the court will be slow to infer a common intention that the one who is not the tenant shall be the sub-tenant of the one who is. The natural inference is that what is intended is a contractual house-sharing arrangement under the tenancy of one of them. The inference is greatly strengthened where, as in the present case, there is written agreement between the landlord and the tenant and none between the tenant and the other occupant” (per Nourse L.J. at 70D).

A former licensee is a trespasser within the meaning of CPR 55.1(b) so that the provision that allows for early hearing dates in trespasser claims will apply (55.5(2)) [para 5.016 Residential Possession Proceedings 7th Edition].  (Greater London Council v Jenkins [1975] 1 W.L.R. 155)

A landlord should be careful because the claim here was that the occupant was the sub-tenant of the main tenant. It could be argued that if the landlord accepted both occupants and perhaps accepted rent from both tenant and occupant, they may both be joint tenants.

Assuming though the occupant remaining in possession is a licensee, then, when the tenancy is surrendered by the “tenant”, the license agreement will be at an end.

Tenant sub-lets part of the dwelling

Where an assured [shorthold] tenant sub-lets part of a dwelling (unlike above where the occupant was a mere lodger), the main tenant keeps his status as an assured shorthold tenant. [s4 Housing Act 1988]. However, a landlord may be able to obtain possession using the section 8 notice procedure using Ground 12 (breach of tenancy obligations).

Tenant sub-lets whole dwelling

Tenancy Lawfully sub-let

Where an assured [shorthold] tenant lawfully sub-lets the whole of the dwelling-house on another assured shorthold tenancy (i.e. by seeking the landlords consent or if there is no provision in the tenancy prohibiting sub-letting during the fixed term), then the sub-tenancy will continue as an assured shorthold. If the superior tenancy is ended, the sub-tenancy still continues and the head landlord becomes the landlord of the sub-tenant. [s18 Housing Act 1988]. Therefore any lawful sub-tenant would need to be ended in the normal ways (section 8 or section 21 notice).

Tenancy unlawfully sub-let

It is an implied term of every assured [shorthold] periodic tenancy that, except with the consent of the landlord,  the tenant shall not (a) assign the tenancy in whole or part, or (b) sub-let or part with possession of the whole or any part of the dwelling-house let on the tenancy [s15(1) Housing Act 1988]. The landlord therefore has the absolute right to refuse such an assignment, sub-letting or parting with possession. He does not have to show his refusal was reasonable [s15(2)]. This only applies to a statutory periodic tenancy (a tenancy that has arisen after the ending of the fixed term).

Where an assured [shorthold] tenant sub-lets the whole of the dwelling, then the original head tenant will most likely loose his status of being an assured [shorthold] tenant because the dwelling can no longer be his only or principle home [Ujima Housing Association v Ansah (1997) 30 H. L. R. 831, CA]. In which case, the head tenancy can be ended by notice to quit or maybe forfeiture and a possession order obtained in the normal way (similar to section 8 procedure). If the sub-tenancy was not granted lawfully, then the sub-tenancy will end with the head tenancy or, as it is often graphically expressed “the branch falls with the tree” [Moore Properties (Ilford) Ltd v McKeon (1976) 1 W.L.R. 1278]. The sub-tenancy comes to an end even if the notice to quit has been served with the consent of the head-tenant [Barrett v Morgan (2000) L. & T.R. 209, HL). However, if the tenancy has "truly" been sub-let, then the trespasser possession procedure is not the appropriate route and the standard procedure should be followed.

A sub-letting of the whole term operates as an assignment. An assignment is different to a sub-letting because the estate in land is transferred from the first tenant to the new tenant. However, an assignment by a tenant is ineffective to pass the tenant's legal estate to the proposed assignees unless it is made by deed [s52(1) Law of Property Act 1925]. A deed is not required if the landlord expressly or impliedly agrees to the assignees becoming the tenant and accepts him in place of the former tenant.

Tenant passes keys to another person

Where the original tenant has expressly surrendered the tenancy to the landlord or ideally has given a notice to quit which has ended the tenancy but then passes keys to another person, there are a couple of possible arguments the occupant will raise.

1. They may say that the property was sub-let to them from the original tenant. In this case though, assuming no consent was obtained, then the sub-letting would have been unlawful (see above). It is respectfully submitted that it was not possible in any event for the original tenant to sub-let because if he had surrendered the tenancy or notice to quit had ended the tenancy, then there was no tenancy to sub-let. In any event, the landlord should obtain a witness statement from the original tenant confirming no sub-letting, assignment or parting with possession took place. With this witness statement confirming the occupier is not telling the truth, the trespassing procedure will be available. If the court decided there was a sub-letting, the original tenant would continue to be liable for the rent and his tenancy should be ended by notice to quit or forfeiture, which will end the sub-tenancy. It is likely that the original tenant will be helpful to a landlord in this case because otherwise, their tenancy continues and rent remains payable. The quicker trespasser procedure is not available to a “genuine” sub-tenant (whether the sub-letting was lawful or not).

2. The other argument could be that the tenancy has been assigned by the original tenant to the occupier. However, to argue this, they must produce the Deed as required by section 52 Law of Property Act 1925 (see above) (subject to the landlord not giving consent). A failure to provide the Deed would be clear evidence that no such assignment took place. However, if the court decided an assignment has taken place, the trespasser would be the tenant of yours and the usual possession procedure would need to be followed (not the trespasser procedure).

On both points 1 and 2 above. If the tenant claims the sub-letting or assignment as the case may be were on the terms that no rent was payable, then any tenancy or assignment could not be an assured shorthold tenancy [sch1 Housing Act 1988]. In addition, a tenancy where there is no money’s worth for rent is not protected by the Protection from Eviction Act 1977 and is described as an “excluded tenancy”. Therefore, no notice or court order is required to regain possession (at common-law some form of reasonable notice is required). A landlord could therefore use the self-help method (without using violence etc. to secure entry). The defendant occupier should supply evidence of rents being paid because a failure to provide such evidence could lead the court to believe that no such sub-letting or assignment took place.

If the trespasser is claiming that he has sub-let the property from the main tenant, this would be for a court to decide whether this was the case. A defendant wishing to make such a claim would be wise in any defence to being a trespasser, provide the written agreement.[/amember_protect]

Squatters – Interim possession order a quicker procedure – Information for owners and tenants

What is the quicker procedure?
It is a procedure in which you can apply to the court for an ‘interim possession order’. If the court makes the order, anybody occupying your premises without your consent, that is, squatting, must leave within 24 hours of a copy of the order being delivered to them (‘served’ on them).
You are called the ‘claimant’. The person (or people) said to be occupying the premises illegally are called the ‘defendants’.

If the defendants do not leave within 24 hours, they will be guilty of a criminal offence. You can ask the police to arrest them. If they are convicted, they may be imprisoned, or fined, or both.

The court will normally [amember_protect levels='keywee' user_action='error' user_error='amember_error_default_user' visitor_action='error' visitor_error='amember_error_default_guest']make a decision on your application within a few days of your issuing it.

An interim possession order is not a final order giving you possession of the premises. You must, therefore, also make an application for possession when you apply for an interim possession order.

A final order for possession will normally be made at a hearing shortly after the interim possession order has been made.

When can I apply for an interim possession order?
You can apply for an interim possession order if you find that your premises have been occupied by a person (or people) without your consent. To do this you will need to meet a number of other requirements.

What are those other requirements?
The other requirements are that the premises being occupied are:

• a building; or
• part of a building, that is a self contained room or flat within it; or
• the land ancillary to a building.

The procedure does not apply to open land.
and that:

• you have an immediate right to possession of the premises being occupied;
• your right has existed for the whole of the time the premises have been occupied illegally;
• you are making your claim for possession within 28 days of the date on which you first knew your premises were being occupied without your consent;

If your premises were occupied for a time before you became aware of it, the judge will consider whether you should have known about it sooner than you did.

• the defendants are not people who have been given a right to occupy the premises by a legal tenant or lessee; and
• you are only making a claim for possession against squatters for the recovery of the premises.

The effects of an interim possession order are serious. Because of this, the court will be concerned to protect the defendant’s interests if the order is later set aside following a successful objection to it. You will be asked to say whether or not you are prepared to give certain promises to the court (called ‘undertakings’) which do this. You will have to indicate whether you have given, or you are prepared to give, the following undertakings:

• to allow the defendant back into the premises and pay them damages if an interim possession order is made and the court later decides you were not entitled to the order;

and

• not to let the premises to anyone else or damage them, or dispose of any of the defendant’s possessions until the court makes a final decision on your right to possession.

It is not a requirement that you must give these undertakings, but the court will take into account your willingness to do so when deciding whether or not to grant you an interim possession order.

Can I make an application if I do not know the name of the defendant?
Yes. You can still make an application. On your application you will refer to the defendant as ‘Persons unknown’.

Where must I make my application for possession and an interim possession order?
You should make your application at the county court in whose area the premises are. The addresses and telephone numbers of all county courts are listed in the telephone directory under ‘courts’.

How much will it cost?
You will have to pay a fee of £175.00 for your application. You can get details of the fee to pay and information about what to do if you cannot pay all or part of a fee from any county court office. You can pay the fee by cash, postal order or cheque. Cheques and postal orders should be made payable to ‘HMCTS’.

What forms will I need?
You will need forms:

• N5 Claim form for possession of property
• N130 Application for an interim possession order,

Form N130 includes a statement to support an application for possession and for an interim possession order.

If the owner of the premises is a corporate body, the statement can be signed by any of its officers authorised to sign such statements and give undertakings on its behalf.

You should make sure the statement contains all the information the court needs to decide whether you are entitled to an interim possession order.

How many copies of the forms will I need?
You will need several copies of the completed forms:

• two sets for you to keep;
• one set for the court;
• one set for each defendant, including one for those whose names you do not know.

You should send or take all the copies to the court with the fee.

What will happen when I have paid my fee to the court?
You will be given form N206B (Notice of issue) which will be a receipt for your fee and tell you your claim number.

Court staff will seal all your sets of the two forms with the court seal and fix an appointment when the judge will consider your application for an interim possession order. The time, date and place of the appointment will be written on all the copies of form N130.

The appointment will be as soon as possible, but cannot be less than 3 days after the date you issued the application.

Court staff will hand back to you all but one copy of the forms N130. Attached to each will be a form N133 (Witness statement of the defendant to oppose the making of an interim possession order).

When do I have to serve the documents?
You must serve the documents within 24 hours of the court issuing your application for an interim possession order.

Do I have to hand the documents to the occupiers personally?
No. You can serve the documents by:

• fixing a copy of them to the main door or other prominent part of the premises, and
• if practicable, inserting them through the letter box in a sealed, transparent envelope addressed to ‘the occupiers’.

If you wish, you may also place stakes in the ground at conspicuous parts of the premises. Copies of the documents, in sealed, transparent envelopes addressed to ‘the occupiers’, should be fixed to the stakes.

You, or any person who serves the documents on your behalf, must then fill in an N215 Certificate of service saying how and when the documents were served.

You must file the completed N215 with the court at or before the hearing to consider your application. If you are attending the hearing, you can take it with you and hand it to the judge.

What will happen at the hearing of any application?
The hearing will normally take place in the judge’s room (called ‘chambers’), in private, although the judge can decide that it should take place in open court.

A defendant may attend the hearing, and may provide written evidence in form N133 or give oral evidence if so required.

The judge can make a decision even if neither you nor the defendant attends.

The judge will consider the evidence in your statement, and whether the undertakings you have given are adequate before making a decision.

If the judge decides not to make an interim possession order, you will be given another hearing date when the court will consider your claim for possession of the premises. The judge may also say what other steps should be taken before that hearing (called ‘giving directions’).

Details of the new hearing and any directions will be set out in an ‘order’. The court will send copies of it to you and the defendant. The defendant will also be sent a copy of form N130, which includes your statement.

Both you and the defendant can attend the new hearing, which will be held in open court. You may also give the court any additional evidence you may have to support your claim for possession.

If the court makes an order that you are entitled to possession of the premises and the defendant does not leave, you will be able to ask the court to issue a warrant of possession. This will allow the court bailiff to evict the defendant.

What will happen if the judge makes an interim possession order?
Courtstaff will prepare the interim possession order and pass it to the judge for approval. You must serve the order within 48 hours of the judge approving it. The time limit for service will be included in the order.
You will be given sufficient copies of the order and form N5, N130, with written evidence in support to serve on the defendant(s) and a form N215 certificate of service.

You must serve the documents in the same way that you served your notice of application, unless the judge decides it should be served some other way.

You, or any person who serves the documents on your behalf, must fill in the form N215 saying how and when the documents were served. You must ensure the court has a copy before any subsequent hearing date.

The fact that you have obtained and served an interim possession order does not enable you to ask the court to issue a warrant of possession.

It is a criminal offence to disobey the interim possession order. If the defendant does not leave within 24 hours of service of the order, you can ask the police to arrest him or her. If convicted they can be imprisoned, or fined, or both.

If you do contact the police, you must hand them a copy of the interim possession order and a copy of the certificate of service of that order.

The interim possession order contains the time, date and place of a further hearing, the ‘return date’. The interim possession order will expire on this date.

Both you and the defendant can attend the hearing and give additional evidence if you wish.

The judge can make a decision in the absence of one or both of you.
On the return date the judge may:

• make a final possession order;
• dismiss your claim for possession, or
• give directions as to how your claim should be handled.

If the judge decides that you were not entitled to an interim possession order, the defendant can ask the court to consider what compensation, if any, you should pay as agreed in the undertakings you gave to the court.

If the judge makes a final possession order, you may ask the court to issue a warrant of possession if the defendant does not leave the premises.

The court will send you copies of any orders which the judge makes.

Can the defendant object to the interim possession order before the return date?
Yes. The defendant can object (called ‘applying to set the order aside’), but only if the order has been complied with. If the defendant has left the property, an application can be made to the court before the return date. The application must be accompanied by a completed form N133which:

• gives the defendant’s full name and an address to which court papers can be sent (an ‘address for service’);
• sets out why the interim possession order should be set aside, and
• includes any written evidence to support this.

An application to set aside cannot be made on the grounds that the defendant did not attend the hearing at which the order was made.[/amember_protect]

Section 61 of the Criminal Justice Act 1994 gives police powers to remove trespassers.

Where damage has been caused by trespassers, to gain entry, powers are available for the police to require the trespassers to [amember_protect levels='keywee' user_action='error' user_error='amember_error_default_user' visitor_action='error' visitor_error='amember_error_default_guest']leave. This power is also available if the trespassers have “used threatening, abusive or insulting words or behaviour towards the occupier”

61 Power to remove trespassers on land

(1) If the senior police officer present at the scene reasonably believes that two or more persons are trespassing on land and are present there with the common purpose of residing there for any period, that reasonable steps have been taken by or on behalf of the occupier to ask them to leave and-

(a) that any of those persons has caused damage to the land or to property on the land or used threatening, abusive or insulting words or behaviour towards the occupier, a member of his family or an employee or agent of his, or

(b) that those persons have between them six or more vehicles on the land,

he may direct those persons, or any of them, to leave the land and to remove any vehicles or other property they have with them on the land.

Criminal Law Act 1977

6.- Violence for securing entry.

(1) Subject to the following provisions of this section, any person who, without lawful authority, uses or threatens violence for the purpose of securing entry into any premises for himself or for any other person is guilty of an offence, provided that-

(a) there is someone present on those premises at the time who is opposed to the entry which the violence is intended to secure; and

(b) the person using or threatening the violence knows that that is the case.

(1A) Subsection (1) above does not apply to a person who is a displaced residential occupier or a protected intending occupier of the premises in question or who is acting on behalf of such an occupier; and if the accused adduces sufficient evidence that he was, or was acting on behalf of, such an occupier he shall be presumed to be, or to be acting on behalf of, such an occupier unless the contrary is proved by the prosecution.

(2) Subject to subsection (1A) above, The fact that a person has any interest in or right to possession or occupation of any premises shall not for the purposes of subsection (1) above constitute lawful authority for the use or threat of violence by him or anyone else for the purpose of securing his entry into those premises.

(4) It is immaterial for the purposes of this section-

(a) whether the violence in question is directed against the person or against property; and

(b) whether the entry which the violence is intended to secure is for the purpose of acquiring possession of the premises in question or for any other purpose.

(5) A person guilty of an offence under this section shall be liable on summary conviction to imprisonment for a term not exceeding six months or to a fine not exceeding level 5 on the standard scale or to both.

(6) [...]

(7) Section 12 below contains provisions which apply for determining when any person is to be regarded for the purposes of this Part of this Act as a displaced residential occupier of any premises or of any access to any premises and section 12A below contains provisions which apply for determining when any person is to be regarded for the purposes of this Part of this Act as a protected intending occupier of any premises or of any access to any premises.

7.- Adverse occupation of residential premises.

(1) Subject to the following provisions of this section and to section 12A(9) below, any person who is on any premises as a trespasser after having entered as such is guilty of an offence if he fails to leave those premises on being required to do so by or on behalf of-

(a) a displaced residential occupier of the premises; or

(b) an individual who is a protected intending occupier of the premises.

(2) In any proceedings for an offence under this section it shall be a defence for the accused to prove that he believed that the person requiring him to leave the premises was not a displaced residential occupier or protected intending occupier of the premises or a person acting on behalf of a displaced residential occupier or protected intending occupier.

(3) In any proceedings for an offence under this section it shall be a defence for the accused to prove-

(a) that the premises in question are or form part of premises used mainly for non-residential purposes; and

(b) that he was not on any part of the premises used wholly or mainly for residential purposes.

(4) Any reference in the preceding provisions of this section to any premises includes a reference to any access to them, whether or not any such access itself constitutes premises, within the meaning of this Part of this Act.

(5) A person guilty of an offence under this section shall be liable on summary conviction to imprisonment for a term not exceeding six months or to a fine not exceeding level 5 on the standard scale or to both.

[...]

(7) Section 12 below contains provisions which apply for determining when any person is to be regarded for the purposes of this Part of this Act as a displaced residential occupier of any premises or of any access to any premises and section 12A below contains provisions which apply for determining when any person is to be regarded for the purposes of this Part of this Act as a protected intending occupier of any premises or of any access to any premises.

12.- Supplementary provisions.

(1) In this Part of this Act-

(a) “premises” means any building, any part of a building under separate occupation, any land ancillary to a building, the site comprising any building or buildings together with any land ancillary thereto, and (for the purposes only of sections 10 and 11 above) any other place; and

(b) “access” means , in relation to any premises, any part of any site or building within which those premises are situated which constitutes an ordinary means of access to those premises (whether or not that is its sole or primary use).

(2) References in this section to a building shall apply also to any structure other than a movable one, and to any movable structure, vehicle or vessel designed or adapted for use for residential purposes; and for the purposes of subsection (1) above-

(a) part of a building is under separate occupation if anyone is in occupation or entitled to occupation of that part as distinct from the whole; and

(b) land is ancillary to a building if it is adjacent to it and used (or intended for use) in connection with the occupation of that building or any part of it.

(3) Subject to subsection (4) below, any person who was occupying any premises as a residence immediately before being excluded from occupation by anyone who entered those premises, or any access to those premises, as a trespasser is a displaced residential occupier of the premises for the purposes of this Part of this Act so long as he continues to be excluded from occupation of the premises by the original trespasser or by any subsequent trespasser.

(4) A person who was himself occupying the premises in question as a trespasser immediately before being excluded from occupation shall not by virtue of subsection (3) above be a displaced residential occupier of the premises for the purposes of this Part of this Act.

(5) A person who by virtue of subsection (3) above is a displaced residential occupier of any premises shall be regarded for the purposes of this Part of this Act as a displaced residential occupier also of any access to those premises.

(6) Anyone who enters or is on or in occupation of any premises by virtue of-

(a) any title derived from a trespasser; or

(b) any licence or consent given by a trespasser or by a person deriving title from a trespasser,

shall himself be treated as a trespasser for the purposes of this Part of this Act (without prejudice to whether or not he would be a trespasser apart from this provision); and references in this Part of this Act to a person’s entering or being on or occupying any premises as a trespasser shall be construed accordingly.

(7) Anyone who is on any premises as a trespasser shall not cease to be a trespasser for the purposes of this Part of this Act by virtue of being allowed time to leave the premises, nor shall anyone cease to be a displaced residential occupier of any premises by virtue of any such allowance of time to a trespasser.

(7A) Subsection (6) also applies to the Secretary of State if the tenancy or licence is granted by him under Part III of the Housing Associations Act 1985

(8) No rule of law ousting the jurisdiction of magistrates’ courts to try offences where a dispute of title to property is involved shall preclude magistrates’ courts from trying offences under this Part of this Act.

12A.- Protected intending occupiers: supplementary provisions.

(1) For the purposes of this Part of this Act an individual is a protected intending occupier of any premises at any time if at that time he falls within subsection (2), (4) or (6) below.

(2) An individual is a protected intending occupier of any premises if-

(a) he has in those premises a freehold interest or a leasehold interest with not less than two years still to run;

(b) he requires the premises for his own occupation as a residence;

(c) he is excluded from occupation of the premises by a person who entered them, or any access to them, as a trespasser; and

(d) he or a person acting on his behalf holds a written statement-

(i) which specifies his interest in the premises;

(ii) which states that he requires the premises for occupation as a residence for himself; and

(iii) with respect to which the requirements in subsection (3) below are fulfilled.

(3) The requirements referred to in subsection (2)(d)(iii) above are-

(a) that the statement is signed by the person whose interest is specified in it in the presence of a justice of the peace or commissioner for oaths; and

(b) that the justice of the peace or commissioner for oaths has subscribed his name as a witness to the signature.

(4) An individual is also a protected intending occupier of any premises if-

(a) he has a tenancy of those premises (other than a tenancy falling within subsection (2)(a) above or (6)(a) below) or a licence to occupy those premises granted by a person with a freehold interest or a leasehold interest with not less than two years still to run in the premises;

(b) he requires the premises for his own occupation as a residence;

(c) he is excluded from occupation of the premises by a person who entered them, or any access to them, as a trespasser; and

(d) he or a person acting on his behalf holds a written statement-

(i) which states that he has been granted a tenancy of those premises or a licence to occupy those premises;

(ii) which specifies the interest in the premises of the person who granted that tenancy or licence to occupy (“the landlord”);

(iii) which states that he requires the premises for occupation as a residence for himself; and

(iv) with respect to which the requirements in subsection (5) below are fulfilled.

(5) The requirements referred to in subsection (4)(d)(iv) above are-

(a) that the statement is signed by the landlord and by the tenant or licensee in the presence of a justice of the peace or commissioner for oaths;

(b) that the justice of the peace or commissioner for oaths has subscribed his name as a witness to the signatures.

(6) An individual is also a protected intending occupier of any premises if-

(a) he has a tenancy of those premises (other than a tenancy falling within subsection (2)(a) or (4)(a) above) or a licence to occupy those premises granted by an authority to which this subsection applies;

(b) he requires the premises for his own occupation as a residence;

(c) he is excluded from occupation of the premises by a person who entered the premises, or any access to them, as a trespasser; and

(d) there has been issued to him by or on behalf of the authority referred to in paragraph (a) above a certificate stating that-

(i) he has been granted a tenancy of those premises or a licence to occupy those premises as a residence by the authority; and

(ii) the authority which granted that tenancy or licence to occupy is one to which this subsection applies, being of a description specified in the certificate.

(7) Subsection (6) above applies to the following authorities-

(a) any body mentioned in section 14 of the Rent Act 1977 (landlord’s interest belonging to local authority etc.);

(b) the Housing Corporation;[ and]2

[...]2

(d) a registered social landlord within the meaning of the Housing Act 1985 (see section 5(4) and (5) of that Act).

(8) A person is guilty of an offence if he makes a statement for the purposes of subsection (2)(d) or (4)(d) above which he knows to be false in a material particular or if he recklessly makes such a statement which is false in a material particular.

(9) In any proceedings for an offence under section 7 of this Act where the accused was requested to leave the premises by a person claiming to be or to act on behalf of a protected intending occupier of the premises-

(a) it shall be a defence for the accused to prove that, although asked to do so by the accused at the time the accused was requested to leave, that person failed at that time to produce to the accused such a statement as is referred to in subsection (2)(d) or (4)(d) above or such a certificate as is referred to in subsection (6)(d) above; and

(b) any document purporting to be a certificate under subsection (6)(d) above shall be received in evidence and, unless the contrary is proved, shall be deemed to have been issued by or on behalf of the authority stated in the certificate.

(10) A person guilty of an offence under subsection (8) above shall be liable on summary conviction to imprisonment for a term not exceeding six months or to a fine not exceeding level 5 on the standard scale or to both.

(11) A person who is a protected intending occupier of any premises shall be regarded for the purposes of this Part of this Act as a protected intending occupier also of any access to those premises.

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