Legal Definitions - writ of assistance

A writ of assistance is a legal order issued by a court, historically used for various purposes, but primarily known today as a tool to enforce possession of real property. Its historical application in colonial America was a significant factor leading to the American Revolution.

• Modern Legal Context: Enforcing Property Possession

  In contemporary law, a writ of assistance is a court order that directs a sheriff or other law enforcement officer to help a person gain physical possession of real property (like land or a building) when a court has already determined that person is the rightful owner, and the current occupant refuses to leave. It's typically used after a judgment has been made regarding property ownership, and the losing party is not complying with the court's order to vacate.

  Examples:

  • Imagine a situation where a court has finalized a divorce, and the judge awarded the family home solely to one spouse, Sarah. However, her ex-husband, Mark, refuses to move out, despite the court's clear order. Sarah could petition the court for a writ of assistance. If granted, this writ would authorize the local sheriff to physically remove Mark from the property, ensuring Sarah can take possession of her legally awarded home.

    Explanation: This example illustrates the modern use of the writ to enforce a court's decree transferring real property (the home) to the rightful owner (Sarah) after the title has been adjudicated (in the divorce settlement).

  • Consider a scenario where a bank successfully forecloses on a commercial building because the previous owner defaulted on their mortgage payments. The court issues a judgment confirming the bank's ownership, but the former owner continues to occupy the premises and operate their business. The bank could obtain a writ of assistance, empowering law enforcement to evict the former owner and secure the property for the bank.

    Explanation: Here, the writ is used to enforce the bank's right to possession of the commercial building, which was legally transferred to them through the foreclosure process, against an occupant refusing to comply with the court's judgment.

• Historical Context: Colonial America and General Search Warrants

  Historically, particularly in colonial America, a writ of assistance was a controversial type of general warrant issued by superior courts. It authorized British customs officials to search any premises for smuggled goods without needing specific evidence of contraband in a particular location. Unlike modern search warrants, these writs were not specific to a place or time, could be used repeatedly, and were transferable, allowing officials broad, unchecked power to enter and search homes, shops, and ships at will. The widespread opposition to these writs was a significant catalyst for the American Revolution.

  Examples:

  • In 1765, a British customs officer in Boston, suspecting widespread smuggling of untaxed tea, might have presented a writ of assistance to enter and search not only a specific merchant's warehouse but also his private residence, his docked ship, and even his neighbor's barn, all without needing separate probable cause for each location. The officer could use the same writ repeatedly over an extended period to conduct these broad searches across the city.

    Explanation: This demonstrates the historical colonial use of the writ as a general search warrant, granting broad authority to search multiple premises without specific evidence, a practice that deeply angered colonists.