Squatters, or individuals who occupy land or buildings without the legal right to do so, are a common issue in many parts of Malaysia. Dealing with squatters can be a complex and challenging process, requiring knowledge of both legal frameworks and practical considerations. In this article, we will provide an overview of the legal framework for dealing with squatters in Malaysia, as well as some practical tips for landowners who are facing this issue.
Defining and Identifying Squatters
According to the Oxford Dictionary, a squatter is “a person who unlawfully occupies an uninhabited building or unused land.” From a legal perspective, a squatter is someone who occupies a piece of land or property without legal title or right to do so. This means that they do not have an agreement (such as a tenancy, lease or licence) with the owner of the land or property to be there.
Justice Richard Malanjum explained squatters in this way: “What is a squatter? He is one who, without any colour of right, enters on an unoccupied house or land, intending to stay there as long as he can. He may seek to justify or excuse his conduct. He may say that he was homeless and that this house or land was standing empty, doing nothing. But this plea is of no avail in law” (Tjia Swan Nio v Ng Nyuk Moi & Ors [1992] 2 MLJ 666).
Practically, landowners may identify squatters on their land in different ways. The most common way is through the observation of makeshift buildings, tents, or structures made of metal or wood. Squatters often use these structures as temporary housing while occupying the land illegally. However, it is important to note that some squatters may also construct more permanent buildings, including brick-and-mortar structures. In some cases, squatters may even attempt to take over a vacant or abandoned building and use it as their own.
Limitation Periods and Adverse Possession
Squatters have no legal right to the land they occupy, regardless of how long they have been unlawfully occupying the land. In Malaysia, this principle is firmly established under Section 341 of the National Land Code 1960 and further supported by the Federal Court’s decision in Sidek Bin Haji Muhamad & 461 Ors v The Government of The State Of Perak & Ors [1982] 1 MLJ 313. Practically, this means that the landowner can take appropriate action to evict squatters at any time and after any period of delay.
Unlike the United Kingdom, the principle of adverse possession does not apply in Malaysia. Adverse possession refers to a situation where a person who occupies land without legal entitlement can eventually acquire ownership rights after a specific period, typically 12 years in the UK. However, in Malaysia, the legal position is different, and squatters cannot acquire ownership rights through adverse possession, regardless of the length of time they have occupied the land.
Risks and Dangers of Self-Help
While landowners have the right to remove squatters from their land, it is advisable to follow the appropriate legal procedures to ensure a smooth and lawful eviction process.
Resorting to self-help is not advisable when dealing with squatters. Landowners taking matters into their own hands by forcefully evicting squatters without a court order can lead to various legal repercussions. Landowners may be held liable for causing interference with the property of the squatters, which can result in claims for damages. Moreover, engaging in forceful eviction may expose landowners to accusations of assault and battery.
Aside from the legal risks, uncooperative squatters may pose a threat to the safety and well-being of the landowners. Confrontations with squatters can escalate into violent situations, putting the landowners at risk of physical harm.
To ensure a lawful and safe resolution, it is recommended that landowners seek legal assistance. Experienced property lawyers can guide landowners through the proper legal procedures, protect their rights, and handle the eviction process in a legally compliant and effective manner.
Legal Proceedings for Evicting Squatters
There are two types of legal proceedings to evict squatters in Malaysia: (1) writ of summons against the squatters for trespass and eviction, and (2) originating summons for summary proceedings to recover possession of land under Order 89 of the Rules of Court 2012. Understanding the differences between these proceedings is crucial in determining the most appropriate approach for a landowner’s specific situation.
Writ of Summons for Trespass and Eviction:
This type of legal proceeding involves initiating a lawsuit against the squatters for trespass and seeking their eviction from the property. Landowners need to file a writ of summons, which contains details of the claim, including the identification of the squatters (by name and NRIC/passport). However, this method has certain challenges. It may be difficult to identify uncooperative squatters, and the process typically involves a longer time frame due to witness examination and court processes. Additionally, even if successful, enforcing monetary damages against squatters who lack financial resources can be challenging.
Originating Summons for Summary Proceedings under Order 89:
The alternative is to initiate summary proceedings under Order 89 of the Rules of Court 2012. This approach allows landowners to seek a court order for the recovery of possession of the land. Unlike a writ of summons, summary proceedings are generally more efficient and expedient. Landowners can file an originating summons supported by affidavits, which provide a summary of the facts and legal arguments, without the need for witness examination. The court will then consider the application based on the submitted documents and decide on the possession of the land.
In summary, while a writ of summons involves a trial with a longer duration and potential challenges in enforcing damages, an originating summons for summary proceedings under Order 89 of the Rules of Court 2012 offers a more streamlined and efficient process.
Procedure for Evicting Squatters under Order 89
The procedure for evicting squatters under Order 89 of the Rules of Court 2012 involves several important steps to ensure a lawful and effective eviction process.
1. Filing an Originating Summons and Affidavit in Support:
The landowner initiates the process by filing an originating summons along with an affidavit in support. The affidavit should include essential information, such as:
a) The landowner’s interest in the land;
b) The circumstances in which the land has been occupied without licence or consent, leading to the landowner’s claim to possession;
c) Confirmation that the landowner does not know the names of the squatters (if they are not named in the summons); and
d) Details of the reasonable steps taken to identify the persons occupying the land (if their identity cannot be ascertained).
2. Service of Originating Summons and Affidavit:
The originating summons and affidavit must be personally served on the identified squatters. Alternatively, the documents can be affixed to the main door or another conspicuous part of the land and inserted into the letterbox (if available) in a sealed envelope addressed to “the occupiers.
3. Uncontested Originating Summons:
If the squatters do not contest the originating summons, the court may proceed to make an order for possession of the land at least 5 clear days after the service or affixing of the originating summons and affidavit.
4. Filing a Writ of Possession:
Upon obtaining an order for possession of the land, the landowner may file a writ of possession within 3 months from the date of the possession order. The writ of possession directs the court bailiff to carry out the eviction of the squatters
5. Contested Originating Summons:
Squatters may contest the originating summons by claiming they have the landowner’s consent for occupying the land. If they provide evidence of such consent, the court may order the matter to proceed to a full trial, as decided by the Federal Court in Shaheen Bte Abu Bakar v Perbadanan Kemajuan Negeri Selangor [1998] 4 MLJ 233 and the Court of Appeal in Tekad Urus Sdn v Penduduk-penduduk yang Menduduki Kawasan yang dipanggil Desa Perwira [2004] 2 CLJ 516.
Execution Of The Order
Once a writ of possession has been issued, the execution process begins to regain lawful control over the land. The following steps outline the execution procedure under Malaysian law:
1. Issuance of Notice for Vacant Possession:
Upon obtaining the writ of possession, the court will issue a Notice for Vacant Possession. This formal notice informs the squatters of the specific timeframe within which they must vacate the land. Generally, squatters are given fourteen (14) days from the date of the Notice to vacate the premises.
2. Appointment of Court Bailiff:
A court bailiff is appointed to oversee the execution process and is empowered to deploy reasonable force to repossess the land. The court bailiff plays a crucial role in enforcing the possession order and ensuring compliance with legal requirements.
3. Enforcement of the Notice:
After the fourteen (14) day period mentioned in the Notice expires, the court bailiff, accompanied by police officers, will be present to ensure the squatters’ compliance with the possession order. If necessary, the court bailiff may use reasonable force to repossess the land.
Practical Considerations
When the day of eviction arrives, landowners should consider practical aspects to ensure a smooth process with the court bailiff. Taking the following steps into account can help protect your rights and property:
1. Engaging Demolition Contractors:
The landowner may have contractors present on the site to assist with the demolition of any unlawful buildings constructed by the squatters. This proactive measure can expedite the restoration of the land to its original state and help ensure that the squatters do not quickly return to their buildings.
2. Securing Open Land:
In cases where the land is open and devoid of structures or fences, the landowner should erect fences along the perimeter to secure the property. This preventive measure will help prevent the squatters from returning after eviction and deter other squatters from occupying the land in the future
3. Seeking Assistance from Relevant Authorities:
To maintain a peaceful and orderly eviction process, it is recommended that the landowner seeks the assistance of relevant authorities, such as the local police or the fire department. This collaboration helps ensure the safety and security of all parties involved, minimising the risk of unnecessary conflicts with uncooperative squatters.
4. Having Lawyers Present
Having lawyers present during the eviction process offers numerous advantages. They provide expert legal guidance, act as witnesses, and deal with emergent issues. Lawyers ensure compliance with the law, protect the landowner’s rights, and handle any disputes or complications that may arise during eviction. Their presence adds credibility, representation, and peace of mind.
Other Options for Dealing With Squatters
Dealing with squatters through legal proceedings can be a complex and daunting process. However, landowners have alternative methods at their disposal to address squatter issues. Here are some viable options:
1. Negotiations:
Landowners can explore negotiations with squatters as an alternative approach. This can involve issuing a letter of demand, formally requesting the squatters to vacate the land within a specific timeframe. Engaging in discussions with the squatters to convince them to leave voluntarily is worth trying. If the squatters are cooperative, an amicable settlement can expedite the process of regaining vacant possession and potentially avoid the need for legal proceedings.
2. Criminal Trespass:
In cases where squatters are uncooperative, landowners can consider lodging a police report against them. The Public Prosecutor may, although unlikely, initiate charges for criminal trespass under Section 447 of the Penal Code in Malaysia. Criminal trespass occurs when a person enters or remains on a property without the owner’s consent, intending to commit an offence or cause annoyance, intimidation, or insult to the property’s possessor (as per Section 441 of the Penal Code). The offence carries a penalty of imprisonment for up to 6 months, a fine, or both.
Evicting Tenants v. Squatters
Evicting tenants and squatters are distinct legal processes with significant differences. Here are the key differences:
1. Applicable Legal Procedures:
The legal procedures for evicting tenants and squatters differ. The suit for trespass and eviction and summary proceedings under Order 89 of the Rules of Court 2012 are specifically designed for evicting squatters. These procedures do not apply to the eviction of tenants. Evicting a tenant generally requires following the appropriate laws governing landlord-tenant relationships.
2. Tenant Holding Over vs. Squatter:
A tenant holding over is a former tenant who continues to occupy the premises after the expiration of the tenancy. They had a lawful right to occupy the property initially through a valid tenancy agreement. In contrast, a squatter is an unauthorised occupant who has no legal right or permission to be on the property. Squatters occupy properties without any prior legal authorization or agreement with the owner.
While a tenant holding over may still have certain legal protections and rights as a tenant, a squatter has no legal entitlement to the property and is considered an unlawful occupant.
Conclusion
In Malaysia, landowners have legal rights and procedures in place to address the eviction of squatters from their properties. Understanding these rights is crucial to protect their interests and regain possession of the land lawfully. The National Land Code 1960 and Order 89 of the Rules of Court 2012 provide the legal framework for dealing with squatters.
Squatters have no legal right to the land they occupy, regardless of the duration of their unlawful occupation. Landowners can initiate legal proceedings, such as the summary proceedings under Order 89, to evict squatters and recover possession of their land. Alternative methods like negotiations and criminal trespass charges may also be considered depending on the circumstances.
Engaging experienced lawyers with expertise in property law disputes can provide valuable guidance throughout the eviction process and ensure compliance with the applicable laws. Landowners should be aware of their rights, seek appropriate legal advice, and follow the prescribed procedures to effectively address squatter issues and protect their property interests.
By Raymond Mah, Joseph Khor and Ow Jeong Jun
Note: This article does not constitute legal advice to any specific case. The facts and circumstances of each and every case will differ and therefore will require specific legal advice. Feel free to contact us for complimentary legal consultation.
