Squatting is when a person finds an abandoned or vacant property and moves in without discussing it with the property owner. It sounds like breaking and entering – except sometimes it is legal.
Who is Considered a Squatter?
A squatter is a person who occupies an abandoned, unoccupied, or foreclosed building (usually residential) or area of land without the permission of the owner. This means that the person does not rent or own the property. Even so, it’s legal and actually quite common to find squatters in the United States.
Isn’t That Trespassing?
Squatting is not necessarily trespassing. Trespassing is a criminal offense, while squatting is usually a civil matter. However, if the landlord or property owner has established that the squatter is unwelcome, the squatting can be treated as criminal behavior.
Keep the following in mind.
- Arizona has some of the most detailed squatter’s rights laws in the United States – there are a lot of different provisions and exceptions, so make sure that you have the correct information while navigating the world of squatters rights and adverse possession.
- Squatters or trespassers may falsely claim that they have a right to be on the property. For example, they may present false papers or other fraudulent evidence to the owner. This is illegal.
- Squatters to have rights, but to gain those rights they have to fulfill the requirements for adverse possession. If they don’t, they can be arrested as criminal trespassers.
- Many homeless people will attempt to take advantage of squatters rights so they can gain ownership of a property without paying rent or mortgage.
There are exceptions to the rule.
- If a person beautifies the property (by planting flowers, removing debris, doing regular maintenance or landscaping), they could possibly avoid being charged with trespassing. This mostly applies to unoccupied or abandoned residential or industrial property.
- If there is a legitimate emergency, someone who accesses the property without permission may be exempt from trespassing.
- The property must not be in use in order for squatters to begin any adverse possession claim.
What About Holdover Tenants?
Holdover tenants are sometimes referred to as tenants at sufferance. They are generally tenants who remain on a property after their lease has ended. In this situation, the tenant is responsible for continuing to pay the rent at the existing rate and terms. If they do continue to pay, the landlord may choose to accept the rent without worrying about the legality of the occupancy.
However, the landlord might serve the tenant with a notice to move out (or a notice to quit). If the tenant still does not leave, they may be subject to a lawful for unlawful detainer. A holdover tenant will not be able to make an adverse possession claim if they have already been asked to leave. At this point, they become a criminal trespasser.
If the landlord continues to accept rent, the tenant then becomes a tenant at will. This means that the tenant is on the property at the will of the landlord and can be evicted at any point without notice.
Understanding Adverse Possession
After a tenant has lived on the property for a certain amount of time, they may be able to claim the rights to the property. In Arizona, it can take up to between 5 and 13 years to gain an adverse possession claim. (ARS § 12-522 et seq.). In this state, the time frame varies a great deal based on the circumstances, and as such, adverse possession is a lot more complicated in Arizona.
When a squatter claims adverse possession, they can gain legal ownership of the property. At this point, the squatter has lawful permission to remain on the property and is no longer considered a criminal trespasser.
In the US, five distinct legal requirements must be met by the squatter before an adverse possession claim can be made. The occupation must be:
- Open & Notorious
If these five elements are not fulfilled by the squatter, then they do not have grounds for adverse possession. Let’s take a look at what each of these requirements means.
(Note that in Arizona—as well as most other states—land owned by the state or municipal governments cannot be claimed via adverse possession.)
In the legal sense, “hostile” doesn’t mean that the squatter broke into the property violently or dangerously. There are three general definitions of hostile, but Arizona only recognizes one of them.
In Arizona, the intent of the squatter is irrelevant to adverse possession. Some states require that the squatter doesn’t know that they are trespassing, but Arizona is not one of those states. Trespassers may or may not know that they are trespassing and that they don’t have permission to be on the property – either way, it makes no difference for adverse possession.
Other states also have a ‘good faith mistake’ clause, which allows for an honest mistake on the part of the trespasser. Arizona does not support this eventuality.
Actual possession requires that the trespasser actually be on the property. They must be physically present on the premises and treat it as an owner would. To document this, the squatter must present proof that they have maintained the property and made improvements. As mentioned before, the beautification of the premises would be an example of actual possession.
In Arizona, if squatters have made improvements to the land, the time required for adverse possession changes. If they have made improvements and paid property taxes (more on this below), they must occupy the property for 5 consecutive years.
If they have not paid taxes and only cultivated the land, this time period is extended to 10 years.
Open & Notorious
“Open & Notorious” means that it must be obvious that someone is squatting on the property. The squatter must not try to hide the fact that they are living on the property, even to the property owner.
The trespasser must be the only one possessing the land. This means that they cannot share possession of the space with other tenants, strangers, other squatters, or the owner.
The squatter must reside on the property for an uninterrupted amount of time. That means that the squatter cannot leave the premises for a length of time and then return while claiming that they’ve been there the entire time. For Arizona, the continuous possession period required for adverse possession can be anywhere between 2 and 10 years, depending on the circumstances.
Color of Title
You’ve most likely come across the term “color of title” during your research on squatter’s rights. When someone has color of title, it means that they have gained ownership of the property without it being a ‘regular’ possession. They might lack proper registration or one or more significant documents.
After an adverse possession case, a squatter can claim color of title if the judgment was in their favor. However, that is not the only way to obtain a color of title ruling.
In Arizona, if you have a reasonable color of title on a rural property, you must live there for 3 years before claiming adverse possession (this is increased to 5 years for a property in the city). However, if you have no claim or color of title, you only need to occupy the property for 2 years. This is an interesting shift from laws in most other states.
Do Squatters Have to Pay Property Taxes?
While some states require that squatters pay property taxes in order to claim adverse possession, Arizona does not. However, if a squatter is paying property taxes, they can choose a different route to gain ownership of the property.
In Arizona, a squatter must pay property taxes for 5 consecutive years before they can file an adverse possession claim, and the process usually goes a lot smoother for a squatter who has paid property taxes.
How to Get Rid of Squatters
Arizona requires that any adverse possession claim gives the landowner or landlord time to respond and dispute the claim. The owner has 3 years after the cause of action arrives to put a stop to it or dispute it. Keep this in mind while navigating the following values.
There are different occupation time requirements for different circumstances in Arizona. This isn’t usual; in most other states, there is one rule that may have exceptions. Here are the base occupation times required by each circumstance (before the owner’s 3-year dispute time).
- Occupancy as a trespasser with no claim to the title: 2 years
- Color of title: 3 years for rural properties, 5 years for city properties
- Property Taxes Paid with Occupancy: 5 years
- Property Taxes Paid with Occupancy and Cultivation: 5 years
- Occupancy with cultivation only: 10 years
It’s important to note that all of these time requirements must be met continuously. (ARS § 12-522 et seq).
Arizona also has a limit on how much land you can claim via adverse possession. You cannot claim more than 160 acres of land at a time with this process.
One of the best ways that you can stop squatters from gaining control of your property in Arizona is to file a ‘quiet title lawsuit’ during occupation or after an adverse possession claim has been filed. This is a simple legal action which asks the court to confirm that you own the land, and it can stop an adverse possession claim from happening.
Remember that, as a landowner or landlord, you have three years to challenge an adverse possession claim if one has been filed. Filing a ‘quiet title lawsuit’ can be one of the ways that you challenge the claim.
As far as getting squatters off of your property, Arizona has a handful of unique laws about this. The first is the guest removal law, which was originally instated to allow landlords to remove the unwelcome guests of their tenants.
By this law, a landlord has the power to immediately remove any guest who is not named on the written lease. Simply calling the police can get the squatters off of your property if this applies to your situation (ARS § 33-1378).
If that provision doesn’t apply to your situation, you may have to go through an eviction process to get squatters off of your property. In Arizona, there are four types of eviction notices (all can be found in ARS § 33-1368).
- Five-Day Notice to Pay Rent. Five days to pay rent or the rental agreement (if there is one) will be terminated and eviction will be filed (ARS § 33-1368(B)).
- Five-Day Notice to Cure. Five days to maintain the rental location and fix problems that might cause health or safety issues. If maintenance has not been performed after five days, the landlord can file an eviction. A list of obligations for tenants of your properties are listed under ARS § 33-1341.
- Ten-Day Notice to Cure. This applies when the tenant violates the lease or rental agreement. This can include providing false information. After ten days, if the violation is not fixed, the landlord can file a lawsuit.
- Unconditional Quit Notice. This allows the landlord to immediately file an eviction lawsuit, and the tenant will have no chance to correct the situation. This notice can only be used if the tenant has discharged a weapon, performed a homicide, used or sold illegal drugs, assaulted or threatened another tenant or visitor to the property, engaged in prostitution, or engaged in criminal street gang activity.
If the squatter on your property has done any of the illegal things listed above, you may have grounds to serve them with an unconditional quit notice. Otherwise, the Five-Day Notice to Pay Rent might be your best option for getting rid of squatters.
Whether or not the squatter fights the eviction, a landlord or landowner cannot self-evict them. They cannot be removed by anyone but a law enforcement officer or the tenant or squatter can sue for damages.
After an eviction case is won, a law enforcement officer must be called if the tenant or squatter refuses to leave the property. If they have left personal property, the landowner must inform them in writing that they have 21 days to retrieve their property. After that 21 days, the landlord may dispose of or sell the property.
Please note that you should never call the local police to get rid of a squatter. The only way that the local police can help with this matter is if the squatter is committing a criminal trespass and needs immediate removal. Otherwise, you should always call the sheriff, as they can help with squatters after it’s legal to remove them.
Tips for Protecting Yourself from Squatters
- Inspect the property regularly
- Secure the property by making sure that all doors and windows are locked and that all entrances are blocked.
- Put up “No Trespassing” signs on the property, especially if it is unoccupied
- Serve written notice as soon as you realize squatters are present
- Offer to rent the property to the squatters
- Call the sheriff (and not the local police) to remove squatters from the premises if they do not leave
- Hire a lawyer in case you need to file a lawsuit or have questions about your rights and legal actions you can take
Squatters can be a landlord’s worst nightmare. Make sure that you have the right legal knowledge and guidance to prevent someone from making an adverse possession claim on your property.