Occupation by protesters

Occupation of private property for any purpose without the consent or permission of a university as the landowner is a trespass. However, the university must obtain a Possession Order from the Court before it removes any protesters who are occupying private property as trespassers. The university is not otherwise entitled to exercise any self-help remedy in this situation. 
It is important to act immediately, as soon as the sit-in starts, if it appears that the protest is likely to last any length of time. The court process can sometimes be further expedited to secure a Possession Order within a matter of days, for example, if there is evidence of significant business disruption and/or actual damage to buildings or risk of injury, violence or intimidation. The court only needs to be satisfied that the protesters have had sufficient opportunity to prepare their case (even if they have no defence).
Where there are concerns that a termination of one particular sit-in may simply lead to another in a different building elsewhere on campus, it is possible to secure an injunction along with a Possession Order from the court in order to prevent the trespassing protesters redeploying in this way. An injunction will also have an additional deterrent as it carries with it a power of committal/arrest. 
It is now clear (following a spate of cases in recent years) that protesters will not be able to resist a Possession Order on the basis of a breach of the European Convention on Human Rights (“ECHR”). Provided students and other protesters are able to express themselves in other ways (e.g. protest demonstrations, etc), the rights to Freedom of Expression and Association under Articles 10 and 11 of the ECHR do not extend to allow sit-in protests. In those cases, the property rights of a landowner (whether it is a university, college, etc) remain paramount. The university’s property rights are also protected under Article 1 of the First Protocol of the ECHR.
Action can be taken to bring the protest to an end as soon as the Possession Order has been made. The Court enforcement service provides landowners with a relatively speedy route to recover possession of their land. This can be done within a matter of days or so in appropriate cases. It is also worth noting that if the same premises are re-occupied, it is possible for the university to enforce the existing Possession Order without having to start the entire Court process over again. 
Some points which may prove helpful if you are faced with this situation are:-
  • You will be required to prove to the Court that you are the landowner of the occupied space/university campus so make sure that your title deeds are readily available;
  • Consider streamlining your decision-making when faced with these urgent situations so that you can provide timely instructions to your legal team;
  •  Review the extent of any express or implied permissions issued to students and others to access the particular buildings concerned and consider if you need to give written notice terminating existing arrangements;
  • Be prepared to secure buildings or parts of buildings as far as possible both during a sit-in protest and in the days immediately following the making of a Possession Order in order to lessen the risk of re-occupation;
  • The Court expects landowners to identify individual protesters wherever feasible so consider how you can do this;
  • Consider seeking an injunction at the same time as a Possession Order in appropriate circumstances if there is a real risk of re-occupation.

Martin Edwards
Partner and Head of Real Estate Disputes
For and on behalf of SGH Martineau LLP
DD: 0800 763 1340
M:  07909 925945
F: 0800 763 1740
International DD: +44 870 763 1332
E: martin.edwards@sghmartineau.com 
W: www.sghmartineau.com


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