Protester removal - writ of possession or common law?

When demonstrators, squatters or travellers occupy land or commercial property, landlords have two main options to remove them: court action to obtain a writ of possession, or common law.

In this article, we look at the pros and cons of each method and the circumstances where one will be more suitable than the other.

Common law

Common law, also known as Halsburys, does not require a court order and the process of eviction can start right away by instructing a certificated enforcement agent (most High Court Enforcement Officers or HCEOs are also certificated enforcement agents).

Halsburys Laws of England (Paragraph 1400, Volume 45, 4th Edition) states that:

“If a trespasser peaceably enters or is on land, the person who is in or entitled to possession may request him to leave, and if he refuses to leave, remove him from the land using no more force than is reasonably necessary. This right is not ousted if the person entitled to possession has succeeded in an action at law for possession but chooses not to sue out his writ”

The enforcement agent (EA) will attend the site, give the trespassers 24 hours’ notice to leave and then return the following day to check they have left. If they have not, the EA will remove them and their vehicles from the land.

The EA may request support from the police, but only to prevent a breach of the peace. There is always the possibility that the police officers on site may stop enforcement going ahead if they think that would cause a serious breach.

The second drawback to using common law is that it may not be used if the trespassers are residing in a permanent or semi-permanent structure, such as a barn.

This does not apply to caravans and Halsburys is regularly used to remove travellers, who are generally very accustomed to the process. Sometimes they will leave when notice is served, but more often when the enforcement agents return.

High Court writ of possession

This does require going to court to get an order for possession. The claim can be started either in the county court or via Possession Claim Online. Only in very specific cases where certain criteria are met will the claim be started in the High Court.

Going to court does take a little longer, but a good solicitor who specialises in this aspect of the law will be a great aid in progressing the case promptly through the system and the HCEO should be able to quickly obtain the writ once the possession order is awarded.

At the National Eviction Team, we regularly receive the writ from court within 48 hours of application.

There are, however, many advantages to enforcing under a writ of possession:

• The writ is an absolute remedy – it gives the power to evict and gain vacant possession to land or property
• The HCEO has powers of arrest
• The HCEO can command the police to attend to ensure that the writ is carried out. The police cannot stop the enforcement
• Resistance to the writ is a criminal offence
• No notice is required to enforce a writ of possession. This can be very useful if there is a risk of barricades being set up by the trespassers to prevent removal
• Security is very important to prevent re-occupation, but if they do come back after eviction under a writ of possession, the HCEO can remove them again under a writ of restitution (a writ in support of another writ) without having to go back to court

All these factors give the instructing client greater protection against any claims, as well as ensuring the eviction is completed.

So, common law or a High Court writ?

Common law is faster, but it doesn’t carry the same power as eviction under a writ. If there is unlikely to be resistance to removal, for example the majority of traveller removals, then it is often the best route.

The High Court writ of possession is an absolute remedy and you can be certain the removal will be completed, with protection for you against claims. We would always recommend using a writ in the case of demonstrators and squatters.