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Legal Emma Butcher Clarkslegal
Can a contractor turf out site squatters? What are the rights of a construction company when squatters take up occupancy of a site? Emma Butcher explains the legal implications
CM was recently contacted by a frustrated CIOB member who asked:“If we are the contractor where the site is in our possession for the commencement of building works, we have secured the building as best we can but squatters have broken in, re-secured the place and taken up occupancy overnight – can we simply turn them out when we come to work the next day?”
Unfortunately, there is no simple answer to this question. The legal issues which arise come loosely under the headings of: land law; delay to the works; occupiers’ liability and the Occupiers’ Liability Acts of 1957/1984. Land law The immediate problem is that the “squatters have broken in”. This would suggest some
act of criminal damage. If the individuals forced entry to a building or site, causing damage, this is for the police to deal with. This requires evidence of criminal damage. If no such damage is clear, then the issue may be more difficult to deal with. There is also the question over whether this is a commercial or residential property. There are differences in the protections afforded to owners of residential properties compared with commercial properties. Where the land is wholly commercial, and particularly if the squatters are on open land rather than having broken into a building, it is often possible to instruct bailiffs to remove them without the need for a court order. However, it is a criminal offence to use force or violence to evict squatters, so care needs to be taken. If residential property is involved, or if the squatters do not co-operate in leaving, then a possession order, obtainable from the court, will be required. Timescales for possession orders can be relatively quick, usually a matter of one to two weeks. Delay to the works Which party takes the risk for any delay to the works is likely to depend on the terms of the contract and who has “possession” of the site at the time. If it is the employer who has possession, the employer is unlikely to be able to give possession to the contractor and is preventing the completion of the works. But if, as in this scenario, the contractor already has possession then it is probably at the contractor’s risk, as they have ‘control’ over the site. It will therefore be difficult to argue any entitlement to an extension of time or other compensation without express provision in the contract. In Rapid Building Group Ltd v Ealing Family Housing Association (1984), it was decided that an extension of time that had been granted was invalid because the squatters were present when the contractor took possession. So the employer could not, in fact, provide possession to the contractor.
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