Landowners: dealing with trespassers in Scotland

The Police, Crime, Sentencing and Courts Act 2022 (the “Act”) came into force on 28 June 2022. It granted police in England and Wales significant new powers to deal with trespassers. Our colleagues covered this and what it might mean for landowners in England & Wales in an earlier update: New Police Powers to deal with Trespassers Protestors (cms-lawnow.com).

Much of the Act is not in force in Scotland and there has been no suggestion that similar provisions will come into force in Scotland. We have set out a summary below of what steps remain open to landowners when dealing with trespassers illegally occupying their land.

The options and remedies for dealing with protestors or activists, while involving some of the same process, are different and the specifics relating to them are not within the scope of this article.

What can landowners in Scotland do?

There is a defined and comparatively quick process landowners can follow to secure undisturbed use of their property again.

Information gathering

Removal, whether voluntary or by court order, is easier to achieve with clear evidence of the trespass and its effect on a landowner. Landowners can take the following initial steps when trespassers illegally occupy a property:

• Gather any evidence that trespassers are:
  • unlawfully occupying the property;
  • any damage caused to the property;
  • littering, rubbish or nuisance caused by the trespassers;
  • being abusive or anti-social;
  • preventing lawful use of the property.
• This should include photographic evidence if possible.
• Attempt to speak to the trespassers if it is safe and practical to do so and ask them to move on.

If the trespassers refuse to move on at this stage, landowners should contact the police so that they are aware of the situation. If the trespassers are travellers, the landowner should also get in touch with their local authority’s liaison officer. If the trespassers still refuse to move, landowners can raise court proceedings forcing the trespassers to vacate the property or land in question and prohibiting their return.

Court proceedings

It is possible to raise court proceedings and have them dealt with on an expedited basis. The process is as follows:

• The landowner requests the court’s permission to serve court papers seeking an orders for removal and prohibition of returning to the land on the trespassers with a reduced notice period (often 48 hours or shorter depending on the circumstances).
• Once the court has granted permission, the court papers can be served on the same day.
• If the trespassers defend the court action within the notice period, then a court hearing will take place to determine whether the court should grant the order for removal.
• If trespassers do not defend the court action but remain on the property after the notice period, the landowner can ask the court to grant the order for removal.
• The order is then served on the trespassers requiring immediate removal and prohibiting their return to the property.
• If the trespassers continue to refuse to remove, the officers of the court will, by virtue of the court order, have the power to arrange for their physical removal.

How CMS can help you

We understand that uninterrupted access to property is business critical. Our experienced real estate disputes team have an established track record of helping clients move trespassers on efficiently and cost effectively.

Please do not hesitate to get in touch if you would like assistance – the team are always on hand, whether it is to deal with problems as they arise or to advise more generally.

This article was prepared with the assistance of Jonathan Goodyear (Trainee Solicitor)