What are the rights of a construction company when squatters take up occupancy of a site? Emma Butcher explains the legal implications
Emma Butcher
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.
“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.”
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.
In that case, time became ‘at large’, meaning that the contractor only had to complete in ‘a reasonable time’. Being a somewhat imprecise term, ‘reasonable time’ might work in favour of the contractor, particularly at such an early stage in the project. This will be down to the facts of the case, rather than being a matter of law or contract, and relatively limited case law exists for determining what constitutes a ‘reasonable time’.
Occupiers’ liability and tort
Occupiers’ liability is a related area of concern. There is a general ‘duty of care’ in the legal doctrine of tort which must be observed.
Many feel that if a ‘trespasser’ injures themselves while on a property they shouldn’t have entered, that’s their problem. Unfortunately, that’s not the case in law. It is the responsibility of the occupier to ensure no injury to anyone who enters that property.
The issue of occupiers’ liability is particularly relevant to construction sites. If a person enters a site and injures themselves, the ‘occupier’ may be liable for that injury. This applies even if signs, security, fences and so on are in place. For example, if an individual entered a site, climbed up a tower crane and injured or killed themselves, the contractor could find themselves facing a substantial claim.
Some recognition is given to attempts to secure a site and display adequate warnings. But if it could reasonably be demonstrated that foreseeable risks were not addressed, such as missing protection or not using a proprietary guarding system, then it would not matter if this was a result of oversight or cost-cutting – a degree of negligence could be argued, and the contractor might be liable.
Ultimately, each situation needs to be reviewed in light of the facts at hand, and decisions taken on the basis of the law, the contract in operation, and any other circumstances. If in doubt, where members of the public are concerned, always seek legal advice.
Emma Butcher is an associate solicitor at Clarkslegal
