If you are a landlord or property owner, you may have been in the unfortunate situation of having to deal with unwanted people occupying your premises. These individuals “set up shop” without consent and continue to sip metaphorical piña coladas despite being asked to leave, much to the resentment of the property owners.
Squatters by definition are persons who occupy someone else’s property without holding a title or a right, or without making payment of rent. They are simply people who have occupied land or property without permission and in most instances without knowledge of the property owners.
Property owners normally have a right of reclaiming vacant possession of their land by using a writ of possession. However, procedurally, a law suit and the accompanying writ of possession usually requires the individuals unlawfully occupying the land to be named in the legal action. This is not a problem when it comes to evicting tenants (since landlords will know the identity of the tenants), but it becomes a problem when squatters are involved since the property owner will usually not know the names of the squatters. Squatters also typically will tend to avoid or disregard the requests of the owners, which leads to further difficulties when it comes to identificaiton.
So how do you get back vacant possession of your property if you have no means of identifying the people who are unlawfully occupying it? Thankfully the law recognizes the plights of property owners in these circumstances and provides a method via summary proceedings.
Order 89 of the Rules of Court 2012 provides for possession of land through summary proceedings. Several elements need to be established by an applicant to justify the application:-
- Interest in the land/premise;
- Circumstances of how the land has come to be occupied by the squatters; and
- Inability to identify the persons occupying the land and the reasonable steps taken to try to identify those individuals
If all the above elements are established, then the Court will provide an order for vacant possession and for the squatters to remove themselves from the land. Upon an order being granted, the property owner can then enforce this through a writ of possession. In other words, the summary proceedings bypasses the need to individually identify the squatters or defendants.
Distinction between squatters and occupiers with license or consent
Summary proceedings cannot be commenced against individuals who are “occupiers with license or consent” or tenants holding over. This is because the summary proceedings are only intended to evict individuals whose entry onto the land was illegal from the very beginning. Under law, there is therefore a distinction between a person who enters the land illegally, and a person who occupies land legally but thereafter stays on the land illegally.
- A tenant rents the property through a tenancy agreement, but later refuses to leave the premises once the tenancy expires or is terminated. In such a situation, this tenant is known as a “tenant holding over”. Summary proceedings cannot be used against this tenant and the landlord must go through the usual legal proceess of evicting such a tenant.
- Similarly, summary proceedings cannot be used against an occupier whose temporary occupational license (TOL) has expired.
- However, where a property owner discovers that his apartment has suddenly been occupied by unknown persons, he can avail himself of the summary procedure to evict these squatters.
In disputed cases, the burden of proof falls upon the alleged squatters or trespassers to show that they had license or consent of the owner to occupy the land.
Individuals who are aggrieved by the summary proceedings may object by raising triable issues. If there are real issues to be tried, the Court will not allow the summary proceedings. As an example, in the Court of Appeal case of Tekad Urus Sdn v Penduduk-penduduk yang Menduduki Kawasan yang dipanggil Desa Perwira  2 CLJ 516, the Court refused to allow the summary proceedings since there was a triable issue of whether the alleged squatters’ entry on the land was made lawful by acquiesence.
About the author: Amirul Izzat Hasri is an associate in the dispute resolution practice group at Donovan & Ho. He has experience in a diverse area of practice, including general civil and corporate litigation, judicial reviews, land related matters, defamation, debt recovery, and shareholder and boardroom disputes. He has also appeared in Industrial Court proceedings, having represented both employers and employees in unfair dismissal claims.