“Possession is nine-tenths of the law.”
Adverse possession of property – squatters’ rights – is commonly accepted in countries around the world. “Homesteading” – a legal form of squatting – was prevalent in the early and mid-1800s in the United States and formally enacted into law with the Homestead Act of 1862.
In fact, much of the American West was settled by pioneers who moved onto vacant land, built a home, and begin raising crops or livestock. The U.S. Government ultimately recognized their legal right to the land. Much of the property documented by Spanish land grants were transferred to American squatters in California and Texas through adverse possession reinforced by political power.
The Law and Squatters’ Rights
Adverse possession allows a person to gain legal ownership of property without payment if the possession of the property is personal, exclusive, overt, and continuous for a period of time and the rightful owner does not attempt remove the person within a legally defined period. The law recognizes that possession of another person’s property without their consent is illegal and may be subject to civil and criminal penalties.
The law does not distinguish whether adverse possession is intentional or accidental. For example, if a neighbor inadvertently fences a portion of another person’s land and the owner does not object the intrusion (not knowing the exact boundaries), the neighbor can gain legal possession of the land within his fence.
In recent years, poverty advocates have promoted squatters’ right as a “legitimate” avenue for the poor to gain possession of property. In California, community organizer Steven DeCaprio used the state’s adverse possession law to advocate for people experiencing homelessness and to successfully occupy an abandoned home. He founded an organization, Land Action, to help people do the same. ReclaimSF, Moms4Housing, and Chicago’s AntiEviction Campaign are examples of nonprofit’s use of adverse possession to legally take property from the actual owner.
Unfortunately, those out to make a buck on the naivete of those desperate for a home find squatters advocacy a fertile market. Naziyr YishmaEl, formerly known as James Allen Keith, taught a course on adverse possession. For a fee of $75,00, people could become members of his “Association of Autonomous People.” Property owners and prosecutors have a different view: “an opportunist who already had an embezzlement conviction on his record and took advantage of people on the margins during an economic crisis.”
And really: you charge $75,000 and you claim to be serving the homeless and poor?
Removal of Squatters
The removal of squatters is different than the eviction of a tenant. However, removal is not possible if there was ever a landlord-tenant arrangement. A “squatter” by law is an unlawful or unauthorized occupant of property who has entered the property without permission. Even those poor souls who has been duped by a con man and signed a fraudulent lease agreement are subject to removal.
Property owners can reacquire possession of their property by having the occupant arrested for housebreaking, changing the locks, posting a notice of repossession, and filing a statement with the court. In lieu of a criminal arrest, the property owner can regain possession through a civil action.
Squatters often claim tenants’ rights by asserting they have paid rents, have a signed lease agreement (typically fraudulent), or made an oral agreement with the owner substituting rent payments for performing improvements on the property. Such claims delay removal and complicate legal actions. In some cases, property owners resort to “cash for keys” to remove squatters.
Steps to Protect Your Property from Squatters
Worried about squatters in your vacant property? Take the following steps to protect vacant rental units.
1. Maintain physical evidence of your ownership including signs, fences, and gates. Evidence of this type is especially important for remote owners who are unlikely to physically visit their property regularly.
2. When allowing another the use of your property, formalize the conditions with a formal agreement that shows your ownership and the conditions under which they can use or occupy the property. Recognize that casual use, such as letting a neighbor cross your property for convenience for a period, might be grounds for a claim of adverse possession.
3. Visit and inspect your property regularly to identify any trespassers. If you are unable to personally inspect your property, hire an agent on your behalf to perform inspections, the contract clearly stating your ownership and your intent in hiring the agent to protect your interest.
4. If evidence of illegal or improper use is discovered, contact law enforcement to investigate and remove any trespassers. If the guilty party is known, engage an attorney to send a formal cease-and-desist letter with a demand for any damages – real or intangible – as the result of the invasion.
5. Pay your property taxes regularly when due and check local records that you are the only person paying such taxes. Trespassers can gain adverse possession by paying taxes for as little as three years in some states.
Tenant Non-Eviction Laws
Federal and state governments, in response to the Covid-19 pandemic and the widespread loss of jobs, passed eviction moratoriums in early 2020. The laws restricted property owners from evicting tenants who do not pay rents and, in some cases, prohibited late fees and other charges to be collected later. The restriction ignited new interest in using squatter’s rights to take or retain possession of real estate properties without the property owner’s consent. According to Eduardo Peñalver, dean of Cornell’s law school, “You’re engaging in trespass and that’s bad, but if you do it long enough you become the owner.”
State restrictions on evictions vary from state to state. Property owners should know the acceptable causes (typically contained in the ) and legal process to evict renters applicable in their locale.
Smart landlords should develop a strategy to deal with that eventuality including the possibility of removing a tenant for reasons other than non-payment of rent. The moratorium that prevents the landlord from evicting a tenant does not modify or excuse the tenants’ obligations under their lease agreement. Since rent payments are deferred, not forgiven, property owners should develop options to collect deferred rent payments over an extended period to avoid losing otherwise good tenants.
Tenants Who Become Squatters
While squatting is primarily associated with the homeless and poor, the non-eviction prohibitions passed to cope with COVID-19 job losses tempted renters to stop making lease payments even when they were financially unaffected by the pandemic.
This tactic can affect all types of property owners, even those who rent out their own home for a month or two as a short-term vacation rental property. The Rosados, homeowners in the popular summer resort town of Sag Harbor, New York, leased their home for the summer to a successful stockbroker. The renter subsequently quit paying the $3,600 rent and refuses to vacate. According to Mrs. Rosado, “We have a squatter that won’t leave. This is directly affecting our family financially, emotionally.” According to the CBS news report, many homeowners in the area are in the same predicament, unable to evict recalcitrant tenants.
As the eviction moratorium lifts, serve an eviction notice immediately to begin the long eviction process. Expect significant delays and backlogs in rent court for the next 12 months.
State-by -State Squatters’ Rights
Each state has enacted laws to protect property owners from adverse possession. A squatter can gain legal ownership of real property in forty-three states by being on the property and treating it as heir own for a minimum of ten years while meeting the following conditions:
- The possession must be open and notorious, i.e., occupied without subterfuge or misrepresentation to the public,
- Exclusive, i.e., other parties cannot share the property,
- Adverse or hostile claim to the true owner’s interest, and
- Continuous and uninterrupted for the State’s statutory period.
Seven states require possession for seven years or less, while four others require more than 20 years. Having a deed or paying taxes on the property can reduce the time necessary to gain ownership in some states.
Alabama Squatters Rights
Squatters can take possession of property if they have a deed to the property or pay the taxes on the property for 10 years. This rule comes from Title 6 Chapter 5 Section 200 of the Code of Alabama.
Alaska Squatters Rights
Arizona Squatters Rights
A squatter with the deed and has paid the taxes on your property for three or more years can take adverse possession of it unless the property is a city lot where the squatter needs the deed and pays taxes for five years. If a neighbor builds across your line of the property, he can take the property after 2years.
Arkansas Squatters Rights
A squatter gains adverse possession of a property after holding the deed and paying taxes for seven years, according to Arkansas Code Annotated 18-11-102.
California Squatters Rights
A squatter Who pays the taxes on your property for five years can gain adverse possession.
Colorado Squatters Rights
Squatters can take possession of property where they have lived for 18 years with a deed or paying taxes on the property for seven years.
Connecticut Squatters Rights
Squatters who have been living there for 15 years can claim adverse possession.
Delaware Squatters Rights
A squatter earns the right to claim your property after living on it for 20 years.
Florida Squatters Rights
Squatters in Florida who pay taxes on your property for 7 years can claim adverse possession of your property.
Georgia Squatters Rights
Squatters can gain possession of the property by living on the property for 7 years or more except for undeveloped land where minimum occupation is 20 years.
Hawaii Squatters Rights
An individual must occupy a property for at least 20 years before the possibility of ownership.
Idaho Squatters Rights
Squatters can make an oral claim for possession after paying the property taxes on a parcel of land for a minimum of 20 years.
Illinois Squatters Rights
Squatters must overtly occupy a property without permission for a minimum of 20 years and pay taxes for 7 years to be given the chance to transfer the deed.
Indiana Squatters Rights
To gain adverse possession, a squatter must occupy a neglected property openly for at least 10 years.
Iowa Squatters Rights
Adverse possession is possible after 10 years of open possession.
Kansas Squatters Rights
Kansas law requires a squatter to be in actual possession of the property for at least 15 years continuously.
Kentucky Squatters Rights
Adverse possession can occur if a squatter occupies the property for 15 years and establish Color of Title for 7 years.
Louisiana Squatters Rights
Squatters must have continuous possession of the property for 10 years, acting as if it were their own and cannot be convicted of disturbing the peace in any way during possession.
Maine Squatters Rights
A squatter must have continuous and uninterrupted possession for 20 years and either claim of title or the payment of taxes.
Maryland Squatters Rights
The general legal requirements for adverse possession is continuous possession for 20 years.
Massachusetts Squatters Rights
Squatters must have open, actual, notorious, exclusive and ongoing possession for 20 years to claim ownership.
Michigan Squatters Rights
After 15 years of overt possession, a squatter cam gain possession of property but must to court to receive legal title.
Minnesota Squatters Rights
Squatters must have open, actual, obvious, exclusive, and continuous possession of property for 15 years to claim adverse possession.
Mississippi Squatters Rights
Squatters must have open, obvious, and exclusive possession of the property and use the property in an uninterrupted fashion for a minimum of 10 years for adverse possession.
Missouri Squatters Rights
A squatter must retain continuous possession of the property for a minimum of 10 years.
Montana Squatters Rights
Squatters must maintain continuous possession of the property for a minimum of 5 years.
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Nebraska Squatters Rights
The state requires squatters to have continuous, open and notorious possession of the property for 10 years.
Nevada Squatters Rights
Squatters are required to be on the premises for a minimum of 5 years before seeking adverse possession.
New Hampshire Squatters Rights
Squatters need to maintain continuous possession of the property for at least 20 years.
New Jersey Squatters Rights
In New Jersey, squatters must occupy the property for 30 years before making a claim of adverse possession. In the case of woodlands; squatters must occupy it for 60 years.
New Mexico Squatters Rights
A squatter must occupy the property for 10 years with apparent title and payment of property taxes for 10 years.
New York Squatters Rights
Squatters must live on the property openly and illegally for a period of at least 10 uninterrupted years to claim adverse possession. In New York City, a previous tenant can gain squatter’s rights just 30 days after their lease term has ended.
North Carolina Squatters Rights
Continuous possession of the property for 20 years is required to claim adverse possession except in cases where the squatters have a justifiable reason to believe they own the property. In the latter case, the time requirement drops to 7 years.
North Dakota Squatters Rights
A squatter must occupy the property for 20 years or have an implied title or paid taxes for 7 years to claim adverse possession
Ohio Squatters Rights
Squatters must live on a property for 21 years without permission, openly and obviously, to make an adverse possession claim.
Oklahoma Squatters Rights
A squatter must occupy the property for 15 years to claim adverse possession.
Oregon Squatters Rights
In Oregon, 10 years of occupancy is required before making an adverse possession claim.
Pennsylvania Squatters Rights
The statutory period of occupation required to claim adverse possession is 21 years.
Rhode Island Squatters Rights
Squatters must occupy property for 10 years before making an adverse possession claim.
South Carolina Squatters Rights
Squatters must occupy the property for a statutory period of 10 years.
South Dakota Squatters Rights
A squatter must occupy the premises for 20 years to claim adverse possession/color of titleor have paid taxes for 10 years to claim adverse possession
Tennessee Squatters Rights
A minimum of 7 years of possession with implied title or 20 years of occupancy without title is required to claim adverse possession.
Texas Squatters Rights
A continuous period of 30 years occupation by a squatter is required to claim adverse possession.
Utah Squatters Rights
The statutory period of occupation before a squatter can claim adverse possession is 7 years.
Vermont Squatters Rights
A squatter must reside on the property for a minimum of 15 years before applying for adverse possession.
Virginia Squatters Rights
A squatter must occupy property openly and illegally for a minimum of 15 years before making an adverse possession claim.
Washington Squatters Rights
Occupation of property for a minimum of 10 years is necessary to claim adverse possession.
Washington D.C. Squatters Rights
A squatter can claim adverse possession of your property after squatting in the unit for 15 years.
West Virginia Squatters Rights
Adverse possession requirements including a 10-year period of occupation must be met to make an adverse possession claim.
Wisconsin Squatters Rights
A squatter must possess the property in a way that is hostile, exclusive, open, notorious, continuous and uninterrupted for 20 years to claim adverse possession.
Wyoming Squatters Rights
Squatters must occupy property for a minimum of 10 years before making an adverse possession claim.
Covid-19 has upended the traditional landlord-tenant relationship, introducing a level of risk that no one expected. Some forget the fundamental reason to own rental real estate – the need for shelter – that remains in place. As life returns to normal, and it will eventually, incomes will return, consumer sentiment will be positive, and the real estate owners that have carefully considered the future, anticipated the unknowns, and taken steps to reinforce their relationships with good tenants will prosper.
Have you ever had to evict squatters? What are your experiences during the coronavirus pandemic with non-paying tenants?