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Dealing with Trespasses

View profile for Neil Largan
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Trespass can be a concern to many landowners; not only does it present a security risk to the property but can also cause nuisance and damage.

Trespass may happen in many ways including but not limited to;

  • an individual simply walking over your land where there is no right to do so;
  • a neighbouring property moving a boundary fence on to your land; or
  • permission for someone to use your land where that permission has come to an end.

There are remedies available to landowners in the courts to resolve these disputes but in the first instance, you would wish to send the other party a cease and desist letter giving them a reasonable period of time to stop trespassing and requiring their Undertaking (formal promises) that they will not continue with their behaviour.  In our experience, matters are usually resolved at this stage and the recipients of these letters usually comply quite quickly given the seriousness of their actions and the potential cost consequences should they not comply. 

If matters cannot be resolved at this stage then the landowner may wish to issue proceedings for an Interim Injunction pending the outcome of a Final Hearing seeking an Order from the Court that the trespasser must stop their behaviour or compelling them to move any infringing boundary features. If there is a dispute over the boundary then a surveyor may need to be appointed to determine the boundary lines.

Many landowners may permit friends, neighbours and family to use either the land or property within the land and often do not document that agreement in writing.  It is firstly important to identify whether there is a Licence or a Tenancy Agreement (particularly in residential issues) to use that land.  Usually, whether that person has exclusive possession will be a determining factor although this is always looked at by the Courts on a case-by-case basis.  We suggest that you take advice before commencing any proceedings against potential trespassers to ensure that you start the correct proceedings and serve the correct Notice.

All too often we see a disagreement between the Licensee and the Landowner when the Landowner no longer wants that person to use their land. If you can establish a licence, the Landowner would need to serve a Notice to Quit giving that person a reasonable amount of time to vacate the land (what is reasonable will depend on the case specific facts).  The Notice needs to be in writing but does not even need to be formal, but you must state that the Licence (permission to use the land) will be coming to an end and when they are required to leave the land.  Once this Notice comes to an end, they will be deemed trespassers and you may need to take Court action to evict them from the land.  If a Possession Order is granted, landowners and trespass cases will usually be granted possession forthwith and thereafter, if they still do not vacate the land then the next step would be instructing Bailiffs to attend to remove them from the property.

Injunction proceedings and proceedings for trespass in general can be extremely costly, time consuming and stressful and so we would recommend trying to avoid this if at all possible.  Our top tips are:

  1. Ensure any Licence is properly documented with any person you may give permission to use either the land or buildings including family members, to document the agreement between you which may assist down the line if matters go wrong.
  2. Display signs on the land confirming that anyone entering that land will be trespassing.
  3. Keep an eye on your boundaries to ensure that neighbouring properties have not moved them, this can be particularly difficult if it is not picked up for many years as it may be that if it is not picked up for relevant periods (in excess of 10 or 12 years) that that landowner may acquire rights to the land.

If you have any concerns about trespass or documentation in relation to Licences or indeed Tenancy Agreements, then please do contact one of the Dispute Resolution team at Crombie Wilkinson Solicitors on 01904 624185 who will be able to assist you.