How to Remove Trespassing Squatters

...
••• No Trespassing sign image by J Elkins from Fotolia.com

Related Articles

Removing a squatter can be a frustrating, complicated process for a landlord or a property owner. Laws governing trespassers who take up residence on a property vary from state to state, so owners should have an awareness of local regulations before taking action. Squatters can gain the right to a property via a doctrine called adverse possession that requires them to meet several factors in order to claim legal ownership to the property. A squatter cannot lay claim to any property owned by local, state or federal government entities through adverse possession.

Defining Squatters and Trespassers

A squatter is an individual who occupies an abandoned, foreclosed or otherwise vacant property and wishes to claim ownership of it. According to Zillow, a person who becomes a squatter is someone who:

  • Breaks into a property and begins living on it.
  • Leases a property and doesn't leave when asked.
  • Rents a property under fraudulent circumstances and pays rent to an individual who is not the owner as the result of a scam.

A trespasser is simply a person who illegally enters a property. Trespassers do not claim a property as their own, unlike a squatter, who wants to take ownership. Both acts are similar in that they are illegal, but squatting is generally a civil matter, while trespassing is criminal behavior. The consequences are also different: trespassers face arrest, and squatters usually face eviction.

Defining Holdover Tenants

While a homeowner may consider a holdover tenant to be a trespasser, they are not really squatters. They are former renters who remain on the property after their lease has expired. If the owner continues accepting their payment of rent, they have the legal right to continue living there.

Various states and their laws determine if the new rental term will be month-to-month or fixed; in some cases, the term simply resets. For example, if it was originally a year-long lease, it will reset for another year from the time of expiration of the first lease.

If the owner does not accept rent payments from the holdover tenant, the tenant becomes a trespasser and removal may be necessary. When evicting a holdover tenant, the landlord usually files an eviction action in court and follows the procedures they would use when evicting any other tenant.

What Are Squatters' Rights?

Squatters' rights give an individual the legal right to live on a property without the owner's permission. Their rights vary from state to state; some states do not have squatters' rights. Squatters can sometimes claim a property as their own if they meet the requirements of adverse possession, and the lawful owner has not yet taken action to evict them.

Usually, squatters' rights apply if a person has lived on a property illegally and continuously for a specific number of years. Each state differs in the length of the required time period. How an owner can evict squatters on their property depends on the laws in effect in their location.

Requirements of Adverse Possession

A squatter who meets the requirements of adverse possession may ultimately obtain legal title to the property. The first requirement is "hostile" occupation, which has three elements:

  • Simple occupation: The squatter is living on someone else's property. They do not have to know the identity of the owner.
  • Awareness of trespassing: Requires the squatter to understand that they are on the property illegally.
  • Good faith mistake: Requires the squatter to have occupied the property in error, for example, through an incorrect or invalid deed.

Other factors for a claim of adverse possession are:

  • Actual possession of the property: Requires the squatter to physically occupy the property and treat it as if it were theirs. They can prove this by documenting maintenance of the property, for example, by beautifying it with landscaping or cleaning it of debris.
  • Open and notorious possession: It is evident that the squatter lives on the property and does not hide. An investigating owner should have an awareness of their presence.
  • Exclusive possession: Requires that the squatter is the only person on the property and does not share it with the owner, strangers or any other tenant.
  • Continuous possession: Requires the squatter to occupy the property without interruption for a certain number of years. This means they cannot leave for weeks or months and then come back. The period of required continuous possession varies from state to state, but is between seven and 30 years.

Years of Occupation on a Property by State

Adverse possession exists in all 50 states. However, how each state enforces this doctrine is different. For example, each state has a different requirement for the length of time a squatter must occupy a property to claim it. These states require squatters to live on a property for 20 years or more:

  • Louisiana and New Jersey: 30 years
  • Ohio and Pennsylvania: 21 years
  • Delaware, Georgia, Hawaii, Idaho, Illinois, Maine, Maryland, Massachusetts, North Carolina, North Dakota, South Dakota, Wisconsin: 20 years

These states allow squatters to live on a property for less than 20 years before attempting to claim it:

  • Colorado: 18 years
  • Connecticut, Kansas, Kentucky, Michigan, Minnesota, Nevada, Oklahoma, Vermont, Virginia: 15 years
  • Alabama, Alaska, Arizona, Indiana, Iowa, Mississippi, Missouri, Nebraska, New Mexico, New York, Oregon, Rhode Island, South Carolina, Texas, Washington, West Virginia, Wyoming: 10 years
  • Arkansas, Florida, Tennessee, Utah: 7 years
  • California, Montana: 5 years

Defining Color of Title

"Color of title" refers to a real estate document that may appear to have validity but does not. The individual claiming ownership of property under color of title may not have the documents to support their claim or their documents are defective. Squatters can claim ownership by color of title after the successful completion of an adverse possession claim.

Not all states recognize color of title. However, it can help squatters in those that do recognize it by reducing the period of time they must continuously live on the property. For example, Kentucky requires a squatter to occupy a property for 15 uninterrupted years, but color of title reduces that time to seven years. Squatters who pay taxes on someone else's property may also see a reduction in the continuous possession requirement, but this does not apply in all states.

Government Property and Squatters

Occasionally, a squatter occupies property that they may not know is owned by the federal, state, county or municipal government. In most places, land owned by a government entity is immune from adverse possession claims. A squatter simply cannot gain ownership of government properties.

For example, a squatter on state-owned land in Alabama may seem to meet all the requirements for adverse possession; they live alone and openly on the property for the required continuous number of years and beautify it. While it would appear that they had a successful claim due to their occupancy, they do not because Alabama will continue to be the legal property owner.

Evicting a Squatter

Landlords or property owners who discover an unwanted individual on their property should immediately call law enforcement for guidance. They can help by determining whether the person is a squatter or a trespasser and remove the person or inform the owner that they must evict them through a court proceeding. For this civil matter, the owner must serve the squatter with an eviction notice and file a civil lawsuit.

Landlords and property owners who wish to evict a squatter must abide by their state laws when doing so. It is illegal to remove squatters by force; to do so may result in a lawsuit or even criminal charges against the owner. In addition, landlords should never change the locks, shut off utilities or otherwise intimidate the squatter into moving. Any of these actions may make it more difficult to legally evict a squatter.

Removing a Squatter's Possessions

After law enforcement evicts the squatter, their personal effects may remain on the property. However, landlords just can't throw these away immediately. Most states require the property owner to send written notice to the squatter, listing the items they left behind and giving them a certain amount of time to collect them.

During that time, it is the owner's responsibility to store and safeguard those items. The squatter's belongings don't usually have to stay on the property; the owner can move them to a storage facility that the squatter will pay for.

If the term of the notice to remove their personal property expires, and the squatter does not return, the landlord or property manager can dispose of the property. Some states allow them to do so in a manner they see fit, by either selling it or throwing it away, while others base what to do with a squatter's property on its value. For example, California requires owners to sell items over $700 at public auction per Civil Code Section 1988 and petition the county treasurer for reimbursement of removal and storage of the objects after the sale.

Preventing Squatters From Entering a Property

Landlords and property owners should be proactive in keeping trespassers and squatters off their property. There are many ways to prevent individuals from entering property in the first place:

  • Posting "No Trespassing" signs on all doors and gates.
  • Locking or blocking doors, windows, gates or fences.
  • Regularly checking for signs of someone on the property.
  • Hiring a property management company to investigate the property.

The longer a squatter lives on a property, the harder it will be to evict them, so it is essential to take action as soon as possible. Also, the longer they live there, the more likely they will be to attempt to make an adverse possession claim. Their presence on the property will make it impossible for the owner to rent to a responsible paying tenant, and the owner may even suffer damage to the property if the squatter refuses to leave. The eviction process can take anywhere from a few days to a few months, depending on the property's location and the circumstances.

COVID-19 and the Eviction Moratorium

The federal Centers for Disease Control (CDC) announced an eviction moratorium in September 2020 during the COVID-19 pandemic. Millions of people lost their jobs as cities and states went into lock down, and tenants' ability to pay rent was in jeopardy. The CDC extended the moratorium in August 2021, according to CNN.

The extension targets those areas hardest hit by COVID-19 with "high" or "substantial" transmission rates. As of August 1, 2021, more than 80 percent of counties in the United States have high rates of COVID infection. According to the Biden administration, the moratorium will cover 90 percent of the country's renters. The latest eviction ban is set to last until October 3, 2021.