MHLS Attorneys-at-law

Many times we get questions about adverse possession (commonly called “squatter’s rights”). But what about the owner’s rights? If you have a squatter on your land, this article is for you.

Squatter’s Rights

If you’ve read our articles on adverse possession, then you know that after sixteen (16) years, the owner’s title is extinguished and the squatter has a right to remain. Before that, though, the land owner can take steps to remove persons that are illegally on his or her land.

Reclaiming Possession – The Court Process

The correct (read: legal) way to remove squatters is through the courts – do not go with bolt cutters and a bulldozer.

The owner applies to the High Court for an order for possession. This order sets the stage to have the squatter removed.

The application is made according to the Civil Proceedings Rules – Part 68 to be exact. It is a summary procedure. That means that at the first hearing of the matter, the court has the power to order possession to the owner then and there IF the squatter cannot show that he has a defence. If the squatter has can show a possible case, though, then the proceedings go down the line of full litigation.

A ‘Part 68’ application has some specific requirements though, so make sure all the rules are followed to the letter.

Once you have the court order in hand, give formal notice to the squatter and provide them with the opportunity to leave peaceably. If they refuse, then we go to Step 2.

Step 2 – A Writ of Possession

Let’s say you’ve gotten your Part 68 Order. And you’ve been a nice guy and given the squatter an opportunity to leave. But now, the squatter refuses and just ignores the order. What’re you supposed to do? Now you apply for a Writ of Possession.

A Writ of Possession is one of different enforcement documents that a court issues. In this case, it empowers a Marshall of the Court to go to the property and forcibly remove the squatter. This is a different process that goes through the court system. Unlike the Part 68 proceedings, this doesn’t go before a Judge. Instead it goes through the Registrar. Once the documents are submitted to the court office according to the standard requirements, the writ is issued – there’s no further hearing. With the Writ in hand, the Marshall will make contact with you or your appointed agent and set a date and time to execute.

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