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Illegal Occupiers
Over the last year the issue of illegal occupation of private
land has been highlighted with a substantial increasein illegal
travellers taking occupation of vacant and derelict sites with easy
access for vehicles.
Unfortunately, many illegal occupiers are aware that, without a
court order, the landowner has no authority toevict and so they can
simply stay put and await a final order.
While raising court proceedings involves expenditure, sitting
back and doing nothing is a high risk strategy. Thereis a potential
for further damage to the property and the risk of others taking
occupation illegally. The onlyguaranteed way of removing illegal
occupiers is through court proceedings.
The Court Process
The process of obtaining an eviction order in Scotland is
relatively simple. Initially, a letter is sent by SheriffOfficers
asking the illegal occupiers to remove within 24/48 hours. Sheriff
Officers provide a report detailing thenumber of illegal occupiers
and a note of the vehicles on the property to be incorporated into
the courtproceedings. If the illegal occupiers fail to remove, a
Summary Cause action has to be raised at the local
SheriffCourt.
In the first instance, we liaise with the Sheriff Clerk at the
local Sheriff Court and seek to reduce the period ofnotice to speed
up matters. This process requires a hearing before the Sheriff
because it may result in adeparture from the normal period of
notice (21 days) and is granted entirely at the Sheriffs
discretion.
Assuming the Sheriff grants the reduced period (normally 48
hours), a return date and a calling date are then
assigned by the Sheriff Clerk. Sheriff Officers are required to
serve the summons before the return date to givethe illegal
occupiers time to respond and they do so by fixing a copy of the
summons to stakes at the entrance,exit and in the middle of the
property.
The return date is the date by which the illegal occupiers must
send a written note of any proposed defence tothe court, or
intimate that they wish to challenge the jurisdiction of the court.
The calling date is usually assigneda couple of days after that,
despite the rules normally requiring a minimum period of 14 days.
Again, this isentirely at the Sheriffs discretion and practice
varies between Sheriff Courts across Scotland.
Assuming that the illegal occupiers fail to attend Court on the
calling date, decree will be granted. Again, to speedmatters up, we
ask for the order to be granted immediately (known as an immediate
extract) which enablesSheriff Officers to serve the order to evict
the illegal occupiers immediately instead of waiting a further 14
days -the reduction in time is again at the discretion of the
Sheriff.
The law which sets out rules to be applied consistently to all
types of removing has recently been changed. ACharge for Removing
under Part 15 of the Bankruptcy and Diligence etc. (Scotland) Act
2007 is now requiredafter decree has been granted. The charge will
give the illegal occupiers a period of (usually) 14 days
noticebefore the removing can take place, unless in special
circumstances the sheriff dispenses with or varies the 14day
period. In the case of illegal occupiers, we will try to have this
requirement dispensed with and, in ourexperience, this is usually
granted.
There are a number of outlays to be considered when raising an
action of removing. These include the courtlodging dues (currently
65) and Sheriff Officer fees, which are governed by statute. It
should also be noted thatlandowners rarely manage to recover the
expense of raising an action from the illegal occupiers.
It is important to inform your insurer immediately on
discovering illegal occupiers on your site and to call thepolice to
enable an incident reference number to be assigned.
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Prevention
To avoid illegal occupiers, it is advisable to ensure that
vacant properties are suitably secured to ensure that novehicle
access can be obtained. After an eviction order has been granted,
many clients arrange for contractors toblock entrances to the site
with industrial concrete bollards thus avoiding further illegal
occupiers arriving.
Our team has wide experience in removing illegal occupiers and
has recently removed illegal occupiers fromdevelopment sites,
airports and even garage forecourts.
For more information please contact:-
Edinburgh:-
Euan McSherry 0131 474 2309
[email protected]
Kenneth Campbell 0131 474 2419
[email protected]
Philip Knight 0131 474 2402
[email protected]
Glasgow:-
Lynne Calder 0141 228 8194
[email protected]
The information contained in this article is given for general
information only and does not constitute legaladvice on any
specific matter.
