Vacant retail property - how to deal with unwanted Christmas traders

22 November 2013

Well the decorations are up, Regent Street’s Christmas lights are officially on and most stores are already in full Christmas mode seeking to tempt shoppers back to the high street.

Unfortunately, however, rogue traders are also hoping to cash in on the Christmas spirit. So at a time when vacant retail premises are at all-time high, property owners and retailers need to take extra care of their empty units or there is a risk that they will fall victim to ‘fly traders’ looking for the ultimate in rent-free “pop up” shops. These traders break into vacant units with the specific purpose of trading for the Festive period, usually vacating after the January sales. In the meantime, owners are faced with the dilemma of what to do with their new unwanted occupiers.

It’s not only property owners with vacant property who need to be vigilant. So do retailers with surplus stores that are currently unoccupied since they remain responsible should squatters occupy them. This can present an additional problem for landlords of tenants that will not or cannot take responsibility for unoccupied units. For instance retail chains that have gone into administration or are undertaking store closure programmes. In those cases, the landlord may want the trespassers out, but has no right to take action because the property is still leased to the tenant.

So what can be done about unwelcome occupiers? Unfortunately, the criminalisation of squatting introduced in 2012 only applies to squatting in residential premises – although the lobbying for the extension of the law to commercial premises is gaining pace. We are left therefore with a range of options with fewer teeth. These include:

  1. Persuasion. Ask the traders to leave. Chances of success? Remote.
  2. Contact the police. Most of the time, the police will be uninterested in shop squatters unless a criminal act has clearly taken place (for instance, you have seen them breaking in and there is clear evidence of criminal damage) or there is public disorder. The police are most likely to consider it a civil matter. Chances of success? Highly unlikely.
  3. Employ private bailiffs. The common law allows you to use “reasonable force” to remove trespassers from your property. There are bailiffs who specialise in this self-help remedy and you should only use licensed experienced professionals. These rights must be exercised with caution because if the bailiffs exceed reasonable force, you are responsible for their actions. Chances of success? Pretty good although the more experienced the squatters, the trickier it becomes. The plus side is that bailiffs are quick and a cost effective solution. The down side is the criminal and civil sanctions that may be brought against you if it goes wrong.
  4. Pursue possession proceedings in court. Once upon a time an action for trespass could be brought in the High Court with minimal notice and expense. An order for possession was easy to obtain and efficiently enforced by High Court sheriff’s officers. Successive law reforms over the years however have pushed possession proceedings into the County Court. The County Court is slow and can take at least 5 – 7 days (usually more) to get a first hearing date. Not only is this action time consuming, it is expensive and can run into several thousand pounds, particularly if experienced fly traders actually defend the hearing. It does not take much – a scribbled ‘tenancy agreement’ - to get the Court to adjourn the hearing so that full evidence can be put before it. This will get the trader through to the New Year, when he will mysteriously vanish. Chances of success? Ultimately extremely good, but expensive and usually too slow.
  5. Do nothing. Presentationally, this may be unappealing however given that most fly traders will vacate after the January sales period and providing that they are not a security risk and do not damage the premises, sometimes it is better simply to wait it out. In the case of an absentee tenant, by the time the landlord has got the tenant to take action, the New Year will have arrived and the squatters already gone.

Sadly none of these options are ideal. There is no guaranteed way to secure eviction just as we can never quite be sure of snow on Christmas Day. As always, prevention remains the best cure and in the run up to Christmas it is always far better to ensure that your vacant premises are properly secured against unwanted guests.

This blog first appeared in Retail Gazette. Reproduced with the kind permission of Retail Gazette.

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