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Possession proceedings

Possession proceedings relating to commercial property can arise in a variety of situations, but common examples include claims for possession against former tenants or relating to forfeiture or trespass claims.

Claims for possession against former tenants usually occur where the tenant fails to vacate the property after the expiry of the contractual term (and the tenancy is not protected under the Landlord and Tenant Act 1954), or where the landlord exercises a break clause to terminate the lease early and the tenant refuses to leave after the break date.

In relation to forfeiture, where a landlord is unable to forfeit the lease by peaceable re-entry it can forfeit by issuing Court proceedings for possession. The lease will terminate when the proceedings are served. A tenant (or in some cases a third party such as an undertenant or mortgagee) can also apply for relief from forfeiture, either by a counter-claim against a landlord’s claim for forfeiture of the lease, or a separate claim. Usually, the person asking for relief will have to remedy the breach giving rise to forfeiture as a condition of relief being granted.

Claims for possession based on trespass arise where a property owner alleges someone (e.g. squatters) has entered onto its land without consent.

The standard possession procedure involves that on issuing the claim for possession, the Court will list a hearing at which it will either grant a possession order, or where the claim is genuinely disputed on grounds which appear to be substantial, give case management directions leading up to a trial where it will determine whether or not a possession order should be made.

Should the possession order not be complied with, it can be enforced by requesting that the Court issue a warrant of possession. The Court’s bailiffs will execute the warrant and carry out the eviction.

For proceedings against trespassers, a property owner can apply for an Interim Possession Order (IPO) as an additional measure to an ordinary possession order. If an IPO is made, the trespasser must leave the property within 24 hours of service or will have committed a criminal offence. A full possession order is then sought at a return date hearing.

We routinely advise and act in all types of claims for possession relating to commercial property, from pre-action to enforcement stages.

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