Navigating unlawful occupation of your land in Scotland

Under Scots Law a landowner has full rights of the use of their land, except in a limited number of exceptional circumstances. Discovering that third parties have unexpectedly taken occupation of your land without permission can be unsettling.

Whether it’s a field, a car park, or a development site, unauthorised occupation for either personal or commercial use can bring issues such as safety risks, property damage, littering, sanitation issues, and disruption to your own use of the land.

While reporting the issue to the police is advisable, it will not result in the removal of the occupiers. The role of the police is to ensure public safety and investigate crime. They typically do not intervene in civil matters such as unlawful occupation of property (though they would deal with specific offences such as property damage or breach of the peace).

In some cases, it may be appropriate to work with local authorities’ dedicated liaison services however, their focus is generally on council-owned land and public spaces. They may offer advice or mediation but are not responsible for removing unlawful occupiers from private land.

It is ultimately the responsibility of the landowner to deal with unlawful occupation (or the tenant where there is a lease in place). In some cases, you could therefore expect the occupiers to stay until either they are ready to move on themselves, or until the landowner raises Court action to remove them.

Fast action is key

Quick action is essential in dealing with unlawful occupiers. The sooner action is taken, the sooner you can reach your desired conclusion. The most effective option for a landowner is to raise Court action and to do so as quickly as possible.

At Anderson Strathern, we aim to lodge a petition for the removal of unlawful occupiers with the Court of Session within 24 hours of receiving instructions from the landowner. This Court has the power to order the removal of unlawful occupiers from land anywhere in Scotland and can also grant an order (an interdict) to prevent the individuals from returning to the same land or moving onto other land that you may own nearby.

The Court of Session operates efficiently, with clerks and judges readily available to address urgent issues. When the petition is lodged in Court, we also ask the Court to shorten the standard 21 day notice period to 24 hours – this is typically granted when there is an ongoing risk of damage or disruption.

We work closely with teams of Messengers-at-Arms across Scotland to ensure that the petition is served swiftly once granted (within 48 hours of instructing us).

What happens if unlawful occupation continues?

Once the petition is served, unlawful occupiers commonly vacate the land within the given notice period. If they refuse, we can return to Court as soon as the 24-hour notice period expires to ask the Court to grant the removal and interdict orders. These are also served by Messengers-at-Arms, and if this does not prompt the occupiers to leave, the Messengers can take further action to remove them (arranging for tow trucks etc. though this is very rarely necessary).

From start to finish, this process typically takes between three to five working days from instruction to actual removal of the unlawful occupiers.

Prevention is better than cure: securing your land

While legal action offers a swift and effective solution, preventing unlawful occupation in the first place is preferable. We recommend landowners secure sites, especially if they are vacant or disused. This can include:

• Fencing and gates: ensure perimeter fencing is secure and gates are locked.
• Barriers and bollards: consider physical barriers to prevent vehicle access.
• Security lighting and CCTV: use visible security measures as deterrents.
• Regular inspections: periodically check for signs of attempted access or breaches.
• “No Trespassing” signage: clearly display notices indicating private land and trespassing prohibitions.

While there’s no way to entirely remove the risk of unlawful occupation, securing a site can make it much more difficult to occupy and therefore less appealing. Despite this, the landowner must weigh the cost of security measures against the level of risk at each site.

If unlawful occupiers do attend, gather information!

If you discover unlawful occupiers on your land, gathering detailed information is crucial for legal proceedings. The more details you provide, the stronger the case. Without putting yourself at risk, try to record:

• Number and type of vehicles
• Position on site
• Registration numbers
• Number of individuals
• Photographs and videos
• Impact and risks

How we can help

Dealing with unlawful occupiers of a commercial or personal nature can be a complex and challenging process, but swift legal action can help you regain control – often within just days. The Property Litigation team at Anderson Strathern specialises in resolving these matters quickly and efficiently, minimising disruption to you.

If you’re facing this issue, please contact Edward Gratwick (Edward.Gratwick@andersonstrathern.co.uk) for expert legal advice.