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.
Quick Facts for Arkansas
- How to Get Rid of Squatters: Eviction or 3-day notice to remedy; beyond that, court
- Required Time of Occupation: 7 years with paid property taxes
- Color of Title: Required; 7 years for unimproved and unenclosed land; 15 for wild and unimproved land
- Property Taxes: Required
Who is Considered a Squatter?
A squatter is someone who is occupying a foreclosed, abandoned, or otherwise unoccupied building or area of land without legal permission. The person does not own the property or own the property, and the property owner may not be aware that the squatter is staying there. Still, under certain circumstances, it can be legal and common for squatting to occur in the United States.
Isn’t That Trespassing?
Squatting is not necessarily trespassing. While trespassing is a criminal offense, squatting falls into the realm of a civil dispute. However, if the landlord or the owner of the property has determined that the squatter is unwelcome, it may be treated as a criminal offense.
Keep the following points in mind:
It’s illegal for a squatter to make a false claim that they have the right to be on the property. This includes presenting the landowner or landlord with false papers or fraudulent documentation.
Squatters do have rights, but they must fulfill the requirements for adverse possession to avoid being arrested as criminal trespassers.
Many people attempt to take advantage of squatter’s rights so that they can gain property without having to pay rent or a mortgage.
However, there are exceptions to these rules.
If a person improves a property, they can possibly avoid legal action related to trespassing. That is, if they clean the property up, plant flowers, or otherwise maintain the property while the owner does not (also known as ‘beautification’), they might be able to avoid prosecution.
A person who has gained access to a property without permission in the case of a legitimate emergency may also be exempt from trespassing.
In order to begin an adverse possession claim, the land must not be in use. The squatter or the person attempting to gain adverse possession rights must be the only one who is occupying or using the area.
What about Holdover Tenants?
Holdover tenants (sometimes referred to as tenants at sufferance) are tenants that remain on the property after a lease or rental agreement has ended. A tenant in this situation is responsible for continuing to pay rent at the existing rate and terms. If the landlord wishes, they can accept the rent without worrying about the legality of the occupancy.
However, if a holdover tenant is notified that they must leave (via a notice to quit or move out) and they refuse to, they can be subject to legal action. They can be sued for unlawful detainer. If a holdover tenant has received a notice asking them to leave, they cannot claim adverse possession. At this point, they are considered trespassers and are committing a criminal offense.
If no notice is served and the landlord continues to accept rent, the tenant becomes a tenant at will. The landlord can then ask them to leave any time and without any notice, because they are on the property “at the will” of the landlord.
Understanding Adverse Possession in Arkansas
Adverse possession laws may allow squatters to gain ownership of the property if they meet certain requirements. These laws were put into place for the good of the land in the US. Essentially, if the owner isn’t taking care of the land or isn’t using it, someone who is going to maintain the land can attempt to claim it.
In Arkansas, a tenant can make an adverse possession claim if they have occupied the land or building for 7 continuous years. (ARC § 18-11-106). When a squatter claims adverse possession, they can gain legal ownership of the property. At the point when an adverse possession claim is filed, the squatter has lawful permission to remain on the property until the proceedings are finished.
In the US, there are five legal requirements that a squatter must meet before they can make an adverse possession claim. The occupation must be:
- Hostile – without permission and against the right of the true owner.
- Actual – exercising control over the real property.
- Open & Notorious – using the property as the owner would and not hiding his/her occupancy.
- Exclusive – in the possession of the individual occupying the real property alone.
- Continuous – staying at the property for 7 or 15 years.
If these five requirements aren’t met, there are no grounds for adverse possession. Additionally, for adverse possession criteria to be met, the squatter must have color of title and show documents of full payment of taxes.
Let’s take a look at what each of these legal requirements mean.
In this situation, ‘hostile’ doesn’t mean aggressive or violent. In Arkansas, a hostile claim on a property boils down to a single definition.
To fit this particular parameter in Arkansas, the squatter or trespasser only has to occupy the land without the consent or permission of the lawful owner. While some other states have different rules (or a different ‘hostile’ definition), that isn’t the case in Arkansas.
The actual possession parameter requires that the squatter be physically present on the property. They must treat the land or property as though they are the owner and be actually using it. This can be established in the trespasser has made efforts to repair, beautify, or maintain the property. Actions such as landscaping, cleaning, and other maintaining acts can be documented as proof of actual possession.
Open & Notorious Possession
This means that the squatter or trespasser makes their occupation of the land obvious to anyone. The squatter isn’t hiding the fact that they are living there, and they are making no attempt to hide from the lawful owner.
The trespasser must possess the land exclusively. The trespasser cannot share possession with strangers, other tenants, or the owner.
The squatter must be residing on the property for an uninterrupted period of time. They cannot stop using the property or return to it later, or this time period will reset. As stated, in Arkansas a squatter must reside on the property for a period of 7 years before they can make an adverse possession claim.
Color of Title
In Arkansas, ‘color of title’ is another requirement for adverse possession claims. You’ve probably come across this term a few times during your research. The legal definition of color of title may change based on the state. In most cases, this is simply ownership of property without having one or more of the proper legal documents that are usually required.
When it comes to Arkansas, this means that the squatter has a good faith belief that they are entitled to the property. Most likely, this belief stems from one of the other five parameters for adverse possession. They may believe that they are entitled to the land because they’ve improved it, because they have lived there for several years continuously, or for a host of other reasons.
Do Squatters Have to Pay Property Taxes?
In many states, squatters must prove that they have paid property taxes to begin an adverse possession claim. In Arkansas, this is absolutely a requirement. The occupying party (or squatter) must pay taxes on the property for their adverse possession claim to be considered. In fact, they must prove that they’ve been paying taxes the entire 7 years for the claim to be valid.
State law indicates that unimproved and unenclosed land shall be held in the possession of the person who pays the property taxes (if he or she has the color of title), but no person is entitled to the possession unless they have paid property taxes for 7 consecutive years. Also, any person who makes 15 consecutive years of property tax payments on wild and unimproved land and holds color of title to the land (prior to the first tax payment) shall be deemed to have possession of the land.
Since it’s only possible to pay property taxes if the owner has failed to pay them, this is a failsafe to prevent unknowing adverse possession.
How to Get Rid of Squatters
Thankfully, the state of Arkansas makes it easy for landlords and landowners to reclaim their property.
In some cases, a landowner may have a legal ‘disability’. In this case, the definition of disability is a bit looser than it might be in the most common sense. When the landowner is a minor (having inherited the property), legally incompetent, or imprisoned, they can defend their claim to their land for an extended period of time.
After their disability has ended (whether that means that the minor comes of age, the person is released from prison or returns to sanity), the landowner has 3 years to reassert that they are the rightful owners of the land in question.
In all, an eviction notice must be served for squatters to be removed from the property. Thankfully eviction doesn’t take as long in Arkansas as it does in some other states.
There are a few different types of eviction notices an owner may issue for an eviction:
- For nonpayment of rent the owner may issue a 3-Day Notice to Quit.
- For no lease or end of lease evictions, the owner may issue a 7-Day Notice to Quit for week-to-week tenancies and 30-Day Notice to Quit for month-to-month tenancies.
- If there is illegal activity such as nuisances or drugs an owner may proceed directly to filing an eviction lawsuit.
An eviction notice, or notice to vacate, gives the squatters a certain amount of days to leave the property. If they don’t leave after that time, owners may file a complaint that requires them to appear in court. After they receive a court summons, squatters have 5 to 10 days (depending on the eviction case) to object in writing.
If the squatters do not file this objection, they can be removed from the property by the county sheriff (not the police). However, if they do file an objection, a hearing will be scheduled.
From there, a judge will decide if they have a claim to the property or a right to be there. If the judge decides in favor of the landlord, it is within their right to have the squatter legally removed from the property by the county sheriff.
Remember that you should be calling the sheriff and not the police for squatter situations. The difference is in their jurisdiction, but it’s critical that you call the right law enforcement. In many states, local police cannot deal with squatter issues unless there is an actual criminal trespass going on. The police can remove trespassers right away, but it takes time to remove squatters. The sheriff might have the only authority to remove a squatter after the proper steps have been taken.
Tips for Protecting Yourself from Squatters
- Regularly inspect your property.
- Secure your property (block all entrances, close and lock all windows and doors, install fences, etc).
- Make sure to put up ‘No Trespassing’ signs. This is especially important if the property is unoccupied.
- Pay property taxes on time.
- As soon as you realize there are squatters present, make sure that you serve written notice.
- Offer to rent the property to the squatters to come to a peaceful resolution.
- Call the sheriff (not the police) to remove squatters if they don’t leave.
- Hire a lawyer in case you need to file a lawsuit to get squatters off of your property.
Squatters and trespassers can be a landlord’s worst nightmare. Arming yourself with the right legal knowledge is crucial to defending yourself against adverse possession claims on your property. Make sure you refer to Arkansas Code Title 18. Civil Actions § 18-601-101 for more information.