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 Delaware
- How to Get Rid of Squatters: Follow the standard eviction process
- Required Time of Occupation: 20 years
- Color of Title: Not required & does not make a difference
- Property Taxes: Not required & does not make a difference
Who is Considered a Squatter in Delaware?
A squatter is someone who occupies an abandoned, unoccupied or foreclosed building or area of land without permission. This means that the person doesn’t own the property, rent the property, or have any right to be there.
Isn’t That Trespassing?
Squatting is not necessarily trespassing. Trespassing is a criminal offense, whereas squatting is usually only civil in nature. However, squatting may be treated as a criminal behavior if the landlord or property owner has made it clear or otherwise established that the squatter or trespasser is unwelcome.
Keep the following in mind.
- Squatters or trespassers may attempt to falsely claim the right to remain on the property. It is illegal to present false documents or fraudulent papers to the owner or law enforcement.
- Squatters do have rights, but only if they fulfill the requirements for adverse possession. If they do not fulfill these requirements, they can be arrested as criminal trespassers.
There are exceptions to the rule.
- If a person beautifies an unoccupied residential or industrial property, they could avoid prosecution for trespassing. This can include planting flowers, removing debris, or other maintenance or landscaping measures.
- If there is a legitimate emergency, someone who has gained access to a property without permission may be exempt from trespassing
- The property must not be in use for squatters to begin an adverse possession claim.
What About Holdover Tenants?
Holdover tenants, or tenants at sufferance, are tenants who remain on the property after a rental agreement or lease has ended. In this situation, the tenant must continue to pay rent at the existing rate and on the existing terms. The landlord can choose to accept this without challenging the legality of the occupancy.
However, if the holdover tenant receives a notice to quit (or to move out), they must leave. If they don’t, they can be sued for unlawful detainer. A holdover tenant cannot claim adverse possession if they have already been asked to leave. At that point, they become a criminal trespasser.
If a landlord continues to accept rent from a holdover tenant without asking them to leave, they become a ‘tenant at will’. They are only on the property at the will of the landlord and, therefore, can be evicted or asked to leave at any time without notice.
Read more about tenants at-will here.
Understanding Adverse Possession in Delaware
After a certain time residing on a property, a squatter may claim adverse possession. In Delaware, it takes 20 years of continuous occupation for a squatter to be eligible for adverse possession (DE Tit. 10 §§7901, et seq). When a squatter claims adverse possession, they have the opportunity to gain legal ownership of the property. After a claim has been made, the squatter is not a criminal trespasser and has permission to remain on the property.
In the United States, there are five legal requirements that must be met before the squatter 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 on the property for 20 years.
If a squatter does not meet these five requirements, they cannot file an adverse possession claim. Let’s look at what each of these means.
In this sense, ‘hostile’ doesn’t necessarily mean violent or dangerous at all. Here are three legal definitions that can be applied instead.
- Simple Occupation. This rule states that the squatter must simply occupy the land. The trespasser doesn’t have to know that it belongs to someone else. Their presence is hostile enough to the interests of the landowner.
- Awareness of Trespassing. The trespasser has to be aware that his or her use of the property is trespassing. They have to know that they have no legal right to be there.
- Good Faith Mistake. Sometimes, a trespasser may have cause to believe that they have a right to the land. This can come from an invalid or incorrect deed or another document that they assume is valid. In other words, the squatter is using the property “in good faith” and aren’t aware that the property has any other legal status.
To meet the requirements of actual possession, the squatter must be physically present on the property and treat it as if they were the owner. Actual possession can be established by documenting the squatter’s efforts to maintain the property or make improvements. The beautification of the property, as mentioned before, is sufficient evidence of actual possession.
Open & Notorious
For an occupation to be “open & notorious”, it must be obvious to anyone – including any property owner who makes a reasonable effort to investigate – that someone is squatting on the property. They must not attempt to hide the fact that they live there.
The squatter must have exclusive possession of the land. They cannot share occupation with the owner, other tenants, or strangers.
The squatter must reside on the property for the entire period of occupation. In Delaware, this means that the squatter must occupy the property for the full 20 years of required occupation time. They cannot leave the property abandoned and then return months later. If they do, the period of occupation restarts again.
Color of Title
During your research into squatter’s rights, you might have come across the term “color of title”. Many states allow or require this as ‘proof’ of a valid adverse possession claim. Basically, it means that the squatter has rights to the property without having legal documentation or the proper registration.
In Delaware, there is no rule for color of title. This simply isn’t part of the laws that govern adverse possession in this state. This is not a valid way to gain ownership of a property in Delaware.
In some states, squatters are required to pay property taxes to claim adverse possession. In fact, some states will decrease the required possession time for squatters who pay the property taxes. However, in Delaware, this simply isn’t the case. Color of title or property taxes records hold no weight in an adverse possession claim and the required period for occupation is still 20 years.
How to Get Rid of Squatters in Delaware
Though many states set a required period of response for landlords, there is no such provision in Delaware. The 20 years of continuous possession is enough to begin an adverse possession claim.
However, there is an exception if the landowner is “disabled”. In this case, a legal disability could be that the landowner is a minor, is legally incompetent, or is in prison. In this case, the landowner has 10 additional years after they are of age, or their disability is lifted to reassert their right to their land.
Delaware doesn’t have extensive laws for getting rid of squatters. As in most states, it is illegal to do anything that would force the tenants or squatters to leave, such as turning off the utilities or changing the locks. This falls under the jurisdiction of self-eviction, and a landowner who takes these actions may face legal repercussions.
Even though there might not be a rental agreement in place, owners must go through an eviction process to remove squatters. There are a few different types of eviction notices that owners can issue to a squatter, depending on the circumstances.
Read more about evictions in Delaware here and download our FREE eviction notice form template.
- 5-Day Notice to Pay Rent. This gives the tenant or squatter five days to pay the amount of the rent before eviction.
- 60-Day Notice to Quit. This notice may be issued when a tenant stays at the property after their rental term has expired.
- No Notice Required for Illegal Activity. The landlord may evict a tenant who causes harm or threatens to harm another person or the property. At this point, there is no formal notice required; the landlord can file an eviction with the courts immediately.
After the owner has won an eviction case, they must request a Writ of Possession. This gives the tenant 10 days to vacate; after that time, the constable may serve the Writ of Possession to the squatter, giving them an additional 24 hours to vacate before being forcibly removed.
Any belongings left behind are stored at the squatter’s expense for 7 days. If they do not pay the costs or claim the property, the owner may dispose of the personal property as they see fit.
Tips for Protecting Yourself from Squatters in Delaware
- Inspect the property regularly.
- Secure the property by making sure that all of the doors and windows are locked. Block all entrances.
- Pay property taxes in a timely manner.
- Put up “No Trespassing” signs on the property, especially if it is unoccupied.
- Serve written notice as soon as you realize there are squatters present.
- Offer to rent the property to squatters.
- Call the sheriff (not the local police) to remove squatters from the premises if they refuse to leave.
- Hire a lawyer in case you must take legal action against the squatters. It’s also a good idea to ask for legal advice on your options.
Squatters have different rights in different states. Make sure you refer to Tit. 10 §§7901, et seq. for more information.