Canada: Trespass Interim Possession Orders: Time To Say Goodbye?

Last Updated: April 16 2019
Article by Annabel Heath and Clive Chalkley

Recently there have been reports in the press about making trespass a criminal offence and amending the law on trespass.

Such a move would certainly be welcomed by the property industry, however, landlords can already obtain an order for possession that makes it a criminal offence to remain in occupation - it is known as an Interim Possession Order (IPO).

The number of instances where squatters are using commercial premises has been rising exponentially over the past three years. What can you do about squatters if they come onto your premises? What are your options and how effective are they? We consider the key options below:

What is an IPO?

An IPO is designed to remove squatters more quickly than conventional possession proceedings as it makes it a criminal offence for the trespassers to remain on site 24 hours after they have been served with the IPO.

In order to apply for the IPO the landowner must:

  1. have an immediate right to possession;
  2. have that right throughout the period of the trespasser's occupation; and
  3. bring the claim within 28 days of the date on which the landowner first knew or ought to have known that a squatter had entered the premises. However, in reality it should be issued as soon as possible.

So if you delay in bringing an action, then an IPO may not be available for you. Further, if your squatters are only occupying open land (with no buildings on it), then an IPO will not be available either.

An IPO is relatively quick, once the claim for possession has been issued, the Court will then fix a hearing date as soon as possible after it issues the claim form but not less than three days after the date of issue. At the hearing the Court will consider whether to make an IPO. If it does make the order then the squatters will be required to leave within 24 hours. If the squatters fail to leave or if they return to the premises pending grant of the final possession order or if they return to the premises within a year of the IPO being made, they may be arrested and be given a fine or even imprisoned.

That's great - isn't it?

The real question is whether the Police have the inclination and resources to enforce such orders. Time and time again landlords find the police unwilling to enforce interim possession orders.

Some say that it is a civil matter so they cannot get involved, some cite reasons such as human rights and others just do not have the resources. So in these situations the landlord must wait until the final order for possession is made so that High Court Enforcement Officers can carry out the eviction.

High Court enforcement

Where there are serious incursions, such as commercial rubbish dumping or other serious incursions, the landowner is able to use the (relatively) streamlined High Court possession procedure which can result in the grant of a possession order within days of the incursion.

However, where there is a less "serious" incursion (although the impact can be just as profound) the High Court route is not available and the claim must be issued in the County Court.

County Court enforcement

Applying for a possession order in the County Court is relatively straight forward:

  1. The claim is issued and a hearing date is listed not less than 2 clear days after issue of the claim;
  2. The claim is served on the trespassers;
  3. The Court hears the claim and grants the order for possession;
  4. A writ of possession is issued and the trespassers are removed by High Court Enforcement Officers.

However as with most things, theory and practice differ considerably.

The overstretched Courts usually list the hearing within weeks, not days. That does not take into account the time it takes for the Court officer's to process the application.

This can result in the trespassers remaining on the land, causing further damage.

So what to do?

Preventing a trespass is nearly always the best option. Practically landlords can put in place measures such as bollards, security fencing, ANPR and CCTV to deter trespassers. However, once detected, the sooner you act, the better the outcome is likely to be. It is usually worth attending with bailiffs immediately to see if you can move the trespassers on. Often, the squatters are well versed in their rights and you will need to obtain a Court order for possession. In these circumstances, the quicker you can get Court proceedings issued, usually, the greater the saving in terms of damage to premises and costs of eviction.

Read the original article on GowlingWLG.com

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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