Can a person simply break into your vacant home when it’s empty or use your otherwise unoccupied land, live there and eventually claim ownership of it? While a rare occurrence, it is possible in some jurisdictions due to laws that exist that have never been updated.
Squatters rights is an old law that remains on the books in some jurisdictions that enables a person to occupy a vacant property in the absence of the owner that may eventually lead to the squatter receiving title and owning the property.
In this article, we’ll discuss the concept of how squatters rights can eventually lead to another concept known as adverse possession where a squatter may end up owning title on a property and claiming ownership. We’ll also specifically discuss several US states who continue to allow the idea of squatters rights to exist.
What Is Squatters Rights As A Concept?
A squatter is a person or people who enter a vacant property and attempt to live there with no permission from the home owner. They essentially attempt to take advantage of an old law that remains on many books referred to as squatters rights that enables this to occur.
Depending on where you live, squatting may or may not be possible. If it’s not possible and not legal, a person who tries squatting can be arrested and charged with trespassing. But if squatting is allowed, in theory a person can cause you the homeowner a tremendous amount of legal trouble and kicking them out of the house may not be as easy as calling the police.
Often, a case of squatting may be rectified quickly by a homeowner calling the police and having the squatter removed immediately. In other cases, the courts may get involved and grant an injunction, allow the squatter to stay temporarily and have the court system sort things out.
Why Do Squatters Have Rights?
The simple concept of squatters right is to make efficient use of land.
Squatters rights is a historical law that existed when life was simpler, property ownership was less complex and there was more free land available with a much smaller population occupying it. It rewards those who make use of property and punishes owners who don’t.
Historically, the idea seemed to be that if someone owned land or property and was not using it, it was being wasted and if someone came along to make claim on the land, use it, make improvements to it and make efficient use of it, they should be allowed to stay there. And if this person (squatter) stayed there long enough and fulfilled other requirements, they could possibly eventually gain title and ownership of the land through their squatting.
What Is Adverse Possession?
Adverse possession refers to a situation where a squatter fulfills a certain set of criteria that eventually enables them to gain title and thus ownership of property that they are squatting on.
Depending on where you live, adverse possession is typically only allowed when certain specific criteria are completely fulfilled by the squatter. It is an old concept that tends not to actually occur in present day but is possible in some jurisdictions.
Common law usually dictates that the squatter’s possession of the property be:
Continuous: The squatter must maintain continuous possession of the property for a period of time which depends on the jurisdiction and what time period is on the statutes. It could be 5 years. It may be 20 years or longer.
Hostile: This means that the possession of the property by the squatter is not approved of by the real owner. So a tenant can’t claim squatters rights on property they are legally renting from the owner nor can a house sitter claim ownership of your home while taking care of it for you.
Open and notorious: Adverse possession cannot be established if the possession of the property by the squatter is not known. It must be known that the squatting is taking place. The landlord will typically find out about it at some point and then make plans to evict the squatter.
Actual: The squatter is actually in possession of the property and is physically occupying it.
Exclusive: The squatter does not share the property with anyone else and is effectively claiming exclusive ownership of it.
If all five conditions are proven, adverse possession may be allowed which would transfer ownership of the land to a squatter.
Some jurisdictions that entertain adverse possession may also require that the squatter make improvements to the property and did not take the property by force.
Why Adverse Possession Matters
If you read the above criteria, the one that sticks out the most is the Continuous requirement because of the potential length of time that a squatter must be occupying the property or land for it to be considered adverse possession. It’s difficult to believe that someone could for example occupy a vacant home for 5 years or longer without the owner knowing about it and evicting them. You may wonder how likely is adverse possession to ever occur?
The problem is twofold:
Time and money
While adverse possession may not be able to be proven, that doesn’t mean that you can simply kick a squatter out who has only been in your house a short period of time. In many cases, police will assist and they will remove the squatter. But if the courts step in and start to look at the situation, it could take weeks or months along with expenses (lawyers, legal fees) paid for by you to remove the squatter.
If you normally rent the home, you can’t rent it until the person is evicted so you lose money from potential renters while the situation is ongoing. And if the squatters damage the home, chances are they won’t be held accountable and won’t have the means to pay for the repairs. You’ll have to do it.
Ignorance of ownership
Some cases of adverse possession that homeowners can appreciate involve not knowing exactly where their property begins and ends. If you have a shared fence or driveway, an easement, a common path used by neighbors and things of that nature, you might be unwittingly opening yourself up to a problem down the line. If you allow a neighbor to make use of a path or area of land that actually belongs to you, over time they may be able to take advantage of the situation by claiming adverse possession.
Let’s talk some real life examples of where this has taken place.
Real Life Examples Of Squatting
In recent years in the US there have been cases particularly in California and Florida where high profile squatting cases have taken place with circumstances including the following.
Vacant home
A home is left vacant due to some circumstance (ie. owner is working somewhere else, the owner is on vacation). A squatter enters the home without permission and seeks to establish it as their residence. In this instance, police often can’t legally help the homeowner and the case may end up in court. Even if the verdict is in favor of the homeowner they still had to fight to get their home back.
As a war veteran in Florida found out
when he was serving away from home, was not occupying his home and it was broken into and taken over by squatters. While adverse possession ended up not being proven, the fact that the squatters were allowed to enter and remain in the property in the first place with help from the courts is very troubling to homeowners.
Legal boundaries
This example is one where exact property ownership and boundaries is unknown and not enforced by one owner and their neighbor takes advantage of it. Imagine a situation where two neighbors live side by side and have a strip of land between their homes. The actual owner of the strip of land Neighbor A allows Neighbor B to build a walkway between the homes not knowing that the land was actually owned solely by Neighbor A. After 20 years of using the pathway, Neighbor B successfully filed a claim of adverse possession and was granted ownership of the strip of land.
Practical Example of Adverse Possession
Think about other examples such as when new homes are built and fences are installed to separate backyards. If a homeowner builds their fence on their neighbor’s side of the property they may eventually establish adverse possession which could cause the real owner grief when trying to sell their home.
This fence scenario happened to our next door neighbor when they moved into their house after purchasing it brand new from the builder. They had a relatively large backyard when compared to the house behind them whose backyard was not nearly as deep. As all the homes were brand new, none came with fences.
While the town had the land registry information on file and each homeowner had the measurements of their own backyard in the purchase documents, the owner at the back felt that his backyard was bigger than it actually was. Without consulting our neighbor, he built a fence that was actually on our neighbor’s side of the property line. After the fence builder refused to move the fence, our neighbor contacted the bylaw office in our town and they had the fence removed at the owner’s expense. He put his house up for sale and moved because he was so mad, my neighbor told me.
Squatters Rights In California
Squatters right in California is an interesting, outdated and for some homeowners, a frustrating situation. Existing California law makes it possible – if unlikely – that a squatter can enter a vacant property, set up shop and live there and establish residency by having mail sent there and paying the property taxes to establish ownership. If the owner finds out about this situation, they may be forced to contact police to remove the person and if that doesn’t work, take the squatter to court.
Due to the number of vacant properties in areas like Oakland and throughout parts of the Bay Area, there have been individual as well as organized efforts to enable homeless people as well as enterprising individuals who know the law to claim residency in vacant homes and live there. This forces the owner of the property to often take legal action – at their expense – to remove the person from their home and reclaim it.
So not only is the owner stuck with an empty house that they own and possibly still paying a mortgage on and not renting out, they now have to spend money to get rid of someone who entered it with no permission. And hopefully get their home back without much damage, which there usually is.
While the chances of succeeding in successfully claiming ownership of your property is low, that’s not the point. The point is that a squatter can enter your property, claim residence and make you take costly and time-consuming legal action to evict them.
How Can I Prevent A Squatter In My Home?
If your property is vacant for whatever reason, you can take steps to ensure you don’t have to protect against a squatter.
Understand your local laws: Determine whether or not squatting and adverse possession is even allowed or possible if your area. If not, you’re main concern becomes maintaining your vacant property and ensuring it isn’t vandalized or broken into.
Consult a lawyer: If squatting is a possibility where you live (ie. California) and you have a property that may be vacant for some time, consult a lawyer with experience on the subject of squatting to learn more about you should legally protect yourself. Learn more about what states allow squatting by clicking here to view updated information.
Look for options: If you can’t rent the property and can’t live there yourself, do you know a trusted person who can? Do you have a friend or family member who could occupy the home and live there so that it isn’t vacant?
Ensure your home insurance is correct: Insurance companies generally want to know within 30 days or less when a property is vacant. You will most likely also require a policy change to vacant home status which typically increases your insurance cost but also protects you as you’re advising the insurer the property is vacant which they will want to know. Your policy could be canceled and a claim denied if they find out the property is vacant and you didn’t tell them.
Get a security system: A monitored security system can help to keep your property protected when you’re not there and alert you to a break in or other problem that the alarm may trigger ie. flooding, fire, smoke, etc.
Check on your property often: If you have vacant land or a home, check on it regularly to ensure no one is using it. Also be very careful about allowing a neighbor to build anything like a fence or pathway that infringes on your land as it can leave you open to legal trouble down the line if adverse possession is claimed. Doing them a favor can cause you grief in the future.