Trespassers Beware: What Can You Do When Borrowers Won't Leave

If someone is threatening or showing signs of violence, your first inclination is usually to call the police. That makes sense. But what about when someone is trespassing on your property?

Let’s take an example. Steven is the lender on a private mortgage where the borrower has defaulted on their payments. Steven has tried to be patient, but now he needs to take back the property, as is his right.

There’s just one problem. The borrower and their family are refusing to leave. Steve never even knew that there were other people living in the house, but the borrower’s entire family was there, and now they’re refusing to get out.

So what do you do? Can police help when dealing with trespassers?

What is trespassing?

Legally, trespassing means someone being on your property when they are unwelcome. This may mean entering your property without an invitation, or it can mean staying on your property after you have asked them to leave.

In these sorts of cases, people who refuse to leave after they’ve been asked, or in the case of power of sale ordered to leave by the courts and already removed by the sheriff and re-enter, are trespassing under the law. The Trespass to Property Act in Ontario does give a police officer the right to arrest a suspected trespasser without a warrant if they have reasonable grounds to believe that someone is trespassing against the law.

But what happens when the police don’t show up?

Non-Emergencies Mean Slower Response Times

The reality is that the police only have so much capacity, and unless there is an immediate threat, they may not act quickly in these situations. Even if you believe that the trespassers may bring harm to the property, a property which you own or have possession of in power of sale proceedings, you may still not rank high on the priority list.

People who feel as though their security has been threatened can sometimes behave erratically. They may take the eviction as a threat, even if they’ve been warned for months that it’s coming. Perhaps they never believed it would actually happen regardless how many warnings they have received and orders against them have been issued. When it does happen, they may act out in unexpected ways.

You can give former occupants (such as tenants or home owners) the opportunity to go back in to retrieve their possessions, but any legal removal may take longer If police don’t think that there is an immediate threat of violence or physical harm, they will still respond to illegal activity, but it may take hours - or even the next day or so. Police understand the issue; they simply do not see it as urgent.

So what can lenders do in this situation?

What Are A Lender’s Next Steps?

When you feel that borrowers or their tenants have taken advantage of you, it’s natural to want them out yesterday. Unfortunately, the legal reality is that nothing is likely to happen overnight. If the occupants are steadfastly refusing to leave even once you have an eviction order from the sheriff, you can bring the sheriff back to try to re-evict, but seeking another order will take months.

With a little patience, police are usually able to get the occupants out without incident, but it’s not always an immediate process. Proceeding with a court action and getting an order for contempt of court may be an option, but that could potentially take months. Changing the locks may be an option, but police are usually unwilling to involve themselves in a civil dispute, so that would need to play out before the courts.Speaking frankly, changing locks is simply not an option if they are inside and locked themselves in and refuse to leave.

The important thing to remember is to take a deep breath, and then call our offices. These are messy, complicated situations that no lender wants to be in, and they are incredibly rare! However they do happen, so working with a team who knows what to do can help save time, money, and potentially even the integrity of your property.

Looking for guidance on tenants who refuse to leave? Contact our office today to learn more about how we can help.