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 someone who takes up residence in an abandoned, unoccupied or foreclosed building or area of land. This is done without lawful permission. The person does not own or rent the property they take over but are usually there without the owner’s knowledge. Despite this, it’s actually common and legal to squat in the United States.
Isn’t That Trespassing?
Squatting is not necessarily trespassing. While trespassing is a criminal offense, squatting is usually civil in nature. Still, squatting can be treated as criminal behavior if the property owner or landlord has established that the individual in question is unwelcome.
Keep the following in mind.
- Squatters or trespassers might falsely claim that they have a right to the property. They can do this by presenting false or fraudulent papers or proof to the owner or law enforcement. This is illegal. In California, however, a squatter can’t be removed if they provide documentation that is at all convincing.
- Even though squatters do have rights in general, they can be arrested as a criminal trespasser if they do not fulfill the requirements for adverse possession.
- Many homeless people take advantage of squatter’s rights to gain ownership of a property without paying rent or a mortgage.
There are exceptions to the rule:
- If a person beautifies (plants flowers, removes debris, or makes improvements) unoccupied or abandoned residential or industrial property, they could possibly avoid prosecution for trespass.
- In the case of an emergency, someone who accesses the property without permission may be exempt from trespassing.
- The property must not be in use or already occupied for squatters to begin an adverse possession claim.
What About Holdover Tenants?
Holdover tenants (also referred to as tenants at sufferance) are tenants who remain on the property after the lease has ended. If the tenant chooses to remain, they are responsible for continuing to pay rent at the existing rate and terms. If the landlord chooses, they can continue to accept the rent without worrying about the legality of the occupancy.
However, if a holdover tenant does not leave after a notice to move out (or a notice to quit), they can be subject to a lawsuit for unlawful detainer. A holdover tenant cannot claim adverse possession if they have already been told to leave; at this point, they will be considered a criminal trespasser.
If the landlord continues to accept rent, then the tenant becomes a ‘tenant at will’. The landlord can evict the tenant without notice at any time because the tenant is on the property at the will of the landlord.
Understanding Adverse Possession
A squatter can claim rights to a property after residing there for a certain time. In California, it only takes 5 years of continuous use or maintenance for a squatter to make an adverse possession claim (CCP § 318, 325).
When a squatter claims adverse possession, they can gain ownership of the property legally. At this point, the squatter has lawful permission to remain on the property and is no longer a criminal trespasser.
In the US, there are five distinct legal requirements that must be met before an adverse possession claim can be made. The occupation is required to be:
- Open & Notorious
“Hostile” doesn’t always mean violent or aggressive. In the legal sense, ‘hostile’ can have three definitions.
- Simple occupation. This rule is followed by most states today and defines ‘hostile’ as the occupation of the land only. The trespasser doesn’t even have to know that the land belongs to anyone.
- Awareness of trespassing. This rule requires that the trespasser is aware that his or her use of the property is trespassing (meaning that they know they have no legal right to be there).
- Good faith mistake. A few states follow this rule. This requires the trespasser to have made an innocent mistake in occupying the property in the first place. They may have an incorrect deed or invalid paperwork. This means that they’ve been occupying the property “in good faith” and were unaware of the property’s current legal status.
Actual possession requires that the trespasser actually possesses the property. They must be physically present and treat it as if they were the owner. This can be proven by providing documentation of efforts to maintain the property, make improvements, or beautify the premises. Landscaping, as mentioned before, constitutes actual possession.
Open & Notorious Possession
“Open & notorious” simply means that the squatter isn’t attempting to hide their occupation of the property. It must be obvious to anyone that they are squatting there (including any property owner who makes a reasonable effort to investigate).
To fit this requirement, the squatter must be the only person in possession of the land. They cannot share possession or occupation with stranges, other tenants, other squatters, or the owner.
The squatter must prove that they have resided in the property for an uninterrupted amount of time. This means that they cannot abandon the property, return to it later, and then claim to have possessed the property for the entire length of time. In California, squatters must have occupied the property or maintained it for at least five continuous years.
Color of Title
Some states have measures for ‘color of title’. This term means that someone has gained ownership of a property without one or more pieces of the required documentation. This can also mean that the squatter believes that they have the right to be there. However, California does not honor ‘color of title’ claims unless they are compelling and very specific to the situation.
Do Squatters Have to Pay Property Taxes?
Some states don’t require squatters to pay property taxes in order to claim adverse possession. This isn’t the case in California. To gain the title to any property, the squatter has to be the one paying the necessary taxes, fees, and bills to maintain the property. If they haven’t been paying, they can be legally evicted and have no legal grounds to file an adverse possession claim.
Always make sure that you are paying your own property taxes. This can help avoid adverse possession claims.
How to Get Rid of Squatters
There are quite a few ways to deal with squatters in California. California definitely works in favor of the landlord or landowner (as long as they have not abandoned the property or failed to maintain it).
First, the property has to be vacant to begin with. If someone else is actively living on the property, a squatter might be performing a criminal trespass. California law is very particular about this.
However, the first step that you can take to remove squatters from your property is to pay them to leave. This isn’t the ideal solution, and understandably so. If the squatters agree and you can pay them to leave, it can save you valuable time as well as money in the long run. It’s a good idea to attempt this before engaging in a lengthy legal battle.
It’s important to note that if the landowner is legally ‘disabled’, they have a longer period to reclaim their property from a squatter or trespasser. A legal disability can mean that the landowner is underage (and have inherited the property) or otherwise incapable of making legal decisions. In this case, the landlord has up to 20 years to prevent an adverse possession claim (by removing the squatters). (CCP § 328).
If the landowner’s disability is removed, either by coming of age, regaining sanity or regaining legal agency, they have five years to reclaim their land. This means that if a squatter is using the land of a disabled person, the period after which they can file an adverse possession claim is extended.
Another way to deny squatters an adverse possession claim is to rent the property to them, or else give them written permission to be there. This can diffuse their adverse possession claim, but it does make getting rid of them significantly harder.
If you have tried all of these methods and they haven’t worked, your next step is to file an eviction notice.
The first thing that you’ll need to do is serve the squatter with a 3-day notice. If they fail to leave after these three days are up, you can file an unlawful detainer suit with the court (make sure that you hire a lawyer or seek legal advice when doing this).
If they are served with the unlawful detainer and do not respond, you can regain possession of the property and may have the squatter removed. If they do respond, a hearing will be scheduled within 20 days.
If the squatter doesn’t have a claim to your property under adverse protection, the judge might rule in your favor. You can present this judgment to the local sheriff (not the police), and the sheriff will post a 5-day notice. After this time, if the squatter remains on your property, they can be forcibly removed.
Tips for Protecting Yourself from Squatters
- Inspect the property regularly.
- Secure the property (make sure all entrances, doors, and windows are locked or blocked).
- Put up “No Trespassing” signs, especially if the property is currently unoccupied.
- Serve written notices as soon as you can when you realize that squatters are present.
- Offer to rent the property to the squatters.
- Call the sheriff (not the local police) to remove squatters from the property if they refuse to leave.
- Hire a lawyer in case you need to file a lawsuit to remove the squatters from your premises.
Squatters can be a landlord’s worst nightmare. Make sure that you arm yourself with the right legal knowledge to prevent anyone from making adverse possession claims on your property.