Squatter’s Rights
Squatter rights refer to the set of legal considerations that impact a landowner or a property owner when squatting takes place. Most people will use this term when discussing their rights regarding the possession of property.
Specifics: To give an example of squatter rights, property law in the United States and many states dictates that a person who possesses a piece of property without authority on their part, or without permission to be there can acquire ownership interest in that property. In Virginia for example, it states that an individual can possess property through the mechanism of adverse possession. This is contingent on the period of time the person has been on the property, whether they have any written authority to be on the property, and if that person is making a good faith claim to that property and treating that property as their own, like a true owner would.
Time Requirements: In Virginia, the timeframe before someone can apply for title to the property is 15 years. In California, the law says that adverse possession can only occur when the individual claiming possession has occupied the land for five consecutive years. In Wyoming, the law states that when a squatter has lived on the property for ten years, then they can apply for same legal rights to the property. The purpose of squatter rights like this is to encourage landowners to use the land and not put it to waste.
Procedures: Squatter rights allow the squatter to apply to have a title issued of the property they are claiming to possess through various procedures. Many jurisdictions require the individual to file a lawsuit in order to get a title to the property , pay for the property and pay taxes on the property. If the individual wins the suit, they are able to receive deed to the property and the title of the property is transferred.
Why Understanding Rights is Important: When a squatter moves into your home, it is highly recommended that you have an understanding of what your rights are to that property, how the laws in your region deal with squatting, what the procedures are and timelines is. In some areas you can evict a squatter, but in others you can’t. Some require that you give the squatter written notice while others might have the apartment or house in order to file a case.
Title 4-7: There are also legal limitations to obtaining squatter rights in some area. Title 4-7, for instance, in the New York Real Property Actions and Proceedings states that the party in possession of the real property must meet the requirements of being in open, notorious and exclusive possession of the premises in question.
And in Title 4-11, the law states that a croft can obtain title when the individual claiming to possess the title to the croft has rented and occupied the property for a period of five years, or fourteen years if they are a minor and they are applying to the property as an adult.
Since squatter rights differs from region to region and many jurisdictions will have their own laws or provisions regarding squatter rights, it becomes a highly specialized field that we don’t go into great detail about in this article.
How to Spot a Squatter
A squatter is a person who occupies a property or structure without permission. Identifying a squatter has specific challenges that not only apply to tenants, but also to other unauthorized occupants of real estate. The Association of Property & Casualty Risk Managers, for example, issued research in 2019 estimating that a meaningful percentage of the homeless population are occupants of real estate. Traditional landlord-tenant law does not apply to those individuals; instead, local ordinances must be evaluated to determine whether and how such persons may successfully be evicted from a property. Church groups are common occupants of property without permission, even becoming well known during the "Occupy Wall Street" movement.
Identifying a squatter versus non-squatter ‘guests’ is critically important. It is a common occurrence at residential properties for individuals (sometimes called ‘guests,’ sometimes called ‘tenants’) to occupy with the oral permission of a property owner, but then turn argumentative and challenging within only days or weeks. In such scenarios, the issue of whether a tenant, guest, or squatter exists must be addressed and identified as quickly as possible. The distinction is critical because a ‘guest’ has been ‘invited in’ and, in some states, has rights against a more typical guest, such as a house guest who is invited in for an undetermined period of time; a ‘squatter,’ without further rights to occupancy, can be evicted.
Even when a squatter might be difficult to identify, other additional challenges exist. For example, depending on state and local law, a squatter may need to be properly ‘evicted’ even though occupying with absolutely no permission. A claim of prescription rights (i.e., that a person or group has occupied an area for long enough that they are recognized as the ‘rightful’ landowners) can be more difficult to defeat if certain actions or decisions have been made on the owner’s part (e.g., failure to post ‘no trespassing’ signs, failure to report damage to the property, failure to visit the area for a period of time, etc.).
Collecting Required Paperwork
In the midst of a squatter situation, certain documents can be used to prove ownership of the property and that the squatter is indeed trespassing. In the state of Florida, a property owner is required to prove that the property is open to the public so that the owner has the legal right to evict an individual who is trespassing on the property. The following types of documentation can be used to demonstrate ownership and show that the individual does not have a legal right to remain in the property.
A deed to the property that is either signed by the current owner or the previous owner that sold the property to the current owner. This offers proof that the property does belong to the property owner.
The property appraiser’s information from the county clerk’s website showing that the property is owned by the intended owner and associates all necessary deeds and official signatures to that person.
Photographs that show the person trespassing on the property.
Cellphone records indicating that the trespasser sent threatening text messages to the property owner.
Police reports that indicate the trespasser vandalized the property.
A description of the property that the trespasser is occupying as well as the date and location at which the individual was trespassing.
The names of individuals who witnessed the trespasser in the act of being on the property without the owner’s permission.
A list of all phone calls that were made to police regarding the squatter’s presence on the property.
Proof of an eviction notice served to the squatter notifying him/her of the impending eviction. An email may be sufficient.
The email correspondence between the property owner and the squatter.
Eviction Notices and Legal Action
Once you’ve determined that you’re in a position to legally evict the squatter, there are formal processes you must follow. The first step is to give appropriate notice that they need to leave. You may have to do more than just ask them to leave, depending on where you live. For instance, some provinces and territories in Canada require that landlords serve a Notice to Vacate to squatters. In the United States, you may have to go so far as serving them a summons, complete with court date.
Even if it’s not required by law where you live, you may be well advised to serve an official notice of eviction. It will go over a lot better in court if you’re challenged, which is always a possibility. And, even if you’re not challenged, it’s still better to have done it right. Put the chances in your favor. There is a certain procedural order that needs to be followed. Before you can file for an eviction, you usually have to attempt mediation or give an official warning, such as a Three Day Notice To Vacate, in most states in the U.S. after which you’ll need to serve a notice of termination of tenancy.
For the most part, you can use the same notices that would be used if the person weren’t a squatter. In other words, if you’ve already used the notice for non-payment, you can use that one for the squatter, unless it requires a name. If so, you’ll probably be able to find one online to suit your needs that’s generic enough not to limit you.
After the notice period, the next step usually involves contacting the sheriff’s department to initiate an unlawful detainer lawsuit. That will get you a court date and a visit from the sheriff later on. But, again, that does depend somewhat on how things are done where you live.
Court Filing and Representation
It is imperative that the pressure of the proceedings is kept up and not stopped. This is a very important point. If trials are put back, hearings postponed or adjourned, this only serves the interest of the squatter. A further hearing will set back the owner’s ultimate/property’s possession of their property by at least another 8 weeks and at worst may enable the squatter to oppose the owner’s claim for relief and as such could further delay possession of the property.
There are a number of different steps involved in the proceedings, namely the initial hearing at the county court where a possession order is sought. This hearing is normally held 14 days from initial application and it is vital that the owner attends this hearing in person. On many occasions the owner will meet the judge who is impressed by the owner’s seriousness to get the property back and on this basis will grant a possession order subject to a stay of execution. This means that the owner will eventually be granted absolute possession of their property if all further hearings are complied with and did not involve serious opposition from the squatter. After receiving the possession of order the next stage is for the landlord/owner to apply for the eviction of hearing itself.
The normal delays involved with the courts come into play in this stage and should be kept as few as possible. If bailiffs are involved to obtain possession , you should also ensure that they are persistent and practical. The majority of landlords we have spoken to have stated that they wish to have ‘their property back yesterday’ however most of the delays are due to the courts.
When a matter happens in court that requires the commercial solicitor to attend, the owner will have the representation of a qualified legal adviser which makes it that much more difficult for the squatter to argue an illegitimate case. Sometimes the court proceeds without the owner even having to attend and this is when the court hears witness evidence, hears the case for both sides, considers the evidence, and then delivers its judgement. Of course the squatter is given the opportunity to get themselves independent legal advice and representation but it is highly unlikely that they will consider instructing a solicitor as it would cost too much money. So not only can property owners expect impartial representation in court from someone qualified to do so but they can usually prepare for the outcome of the case by preparing themselves mentally and picturing what could happen and that is their property back in their hands.
Other Options and Legal Prevention
In many circumstances, it may be beneficial to explore all possible paths to resolution, including negotiation, mediation and settlement, before poking the proverbial hornet’s nest – that is, filing a lawsuit and formally initiating the court process. This is especially true in squatter disputes, where removing such a party may require the use of the sheriff or police to enforce the order – not exactly helpful to the image of a newly formed commercial relationship. If possible, parties should move swiftly through any negotiations, mediation, and settlement discussions, maintaining an amicable tone throughout. The goal should be to avoid any escalation of an already challenging situation.
While not always feasible, amicable resolution can save significant costs concerning legal fees and opportunity costs. For example, it may also be useful to negotiate a "soft exit" strategy with respect to any leases, possibly leveraging any past due payments. For landlords that deal heavily in commercial leasing, the cost of holding an empty property may be significantly less than the cost of litigating a squatter eviction, especially when accounting for additional costs from a damaged or vandalized property.
However, there are circumstances where a squatter will not leave a property willingly or as part of a settlement or other amicable resolution. Accordingly, landlords and property owners should prepare themselves and their properties against the risk of such an occurrence by developing and assessing the following:
By undertaking these steps, landlords and property owners should be able to anticipate and avoid a possible squatter dispute.
Understanding the Local Laws and Resources
Understanding local ordinances and resources available through local government authorities is essential in addressing issues with squatters. Regardless of where the property is located, there will be laws and ordinances in the local jurisdiction regulating the process of a property owner removing any squatter from their land.
Therefore, it is vital that someone dealing with squatters first researches the appropriate government people to contact in order to remove them. They also need to know what ordinances apply to them for the removal process as well as any consequences that may come from having squatters on the premises.
In addition, town or county offices can help in a variety of different ways. For example, police and sheriff’s offices will deal with trespassing calls and can mediate between a squatter and a property owner so that the latter can safely restrict them from the property. If the squatter refuses to leave , police can arrest them under criminal trespass laws. Additionally, currently living squatters that have nowhere else to reside may have legal rights to remain at a place, even if they are not on the lease.
Courts will determine if a squatter did unlawfully enter the property. In civil cases, an eviction is required in order for a squatter to be legally removed. If a squatter does not leave after being ejected, the police may return to arrest them, which could lead to criminal charges under trespassing ordinances.
At the end of the day, any property owner with issues regarding illegal occupancy by a squatter on their land should first consult with local authorities to see what ordinances are in place to help them. Along with the local police department, the county and town offices can provide plenty of information and direction for the property owner.