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 occupies an abandoned, foreclosed or unoccupied residential building (or area of land) without lawful permission. This means that they don’t rent or own the property. Despite this, it’s actually quite legal and common for squatting to occur in the United States.
Isn’t That Trespassing?
Squatting is not necessarily trespassing. Trespassing is a criminal offense, whereas squatting is usually a civil matter. If the landlord or property owner has established that the squatter is unwelcome, however, squatting can be treated as a criminal offense.
Keep the following in mind.
- Squatters and trespassers may present false or fraudulent papers to prove that they have a claim to the property, or a right to remain there. If they present these papers to the landowner or law enforcement, it is illegal.
- Squatters do have rights, but only if they fulfill the requirements for an adverse possession claim. If they don’t, they can be arrested as criminal trespassers.
- Some homeless people will attempt to gain squatter’s rights. This is in an attempt to gain ownership of a property without having to pay rent or a mortgage.
There are exceptions to the rule:
- If a person beautifies the property (either by planting flowers, cleaning up, or making improvements, they might be able to avoid prosecution for trespass.
- If there is a legitimate emergency, someone who accessed the property without authorization may be exempt from trespassing.
- The property must not be in use for squatters to begin the process to claim adverse possession.
What about Holdover Tenants?
Holdover tenants, sometimes referred to as ‘tenants at sufferance’, are tenants who choose to remain on a property after their lease or rental agreement has ended. In this situation, the tenant is responsible for continuing to pay the rent at the existing rate and with the existing terms. The landlord can accept this without questioning the occupancy.
However, if a holdover tenant doesn’t leave after they receive a notice to quit (or move out), they may be sued for unlawful detainer. If they have been asked to leave, a holdover tenant will not be able to make an adverse possession claim. Instead of being a squatter, they are then considered a criminal trespasser.
If a landlord chooses to accept rent from a holdover tenant and doesn’t issue any notice, they become a ‘tenant at will’. This means that they remain on the property ‘at the will’ of the landlord, and they may be evicted at any time without notice.
Understanding Adverse Possession
After a certain amount of time residing on the property, a squatter may be able to claim rights to the property. In Georgia, it takes 20 years of continuous possession to begin a valid adverse possession claim, or 7 years with color of title (GAC Tit. § 44-5-161, et seq). When a squatter claims adverse possession, they can obtain legal ownership of the property.
At this point, the squatter is not a criminal trespasser; instead, they have lawful permission to remain on the property.
In the US, there are five distinct legal requirements that must be met by the squatter before an adverse possession claim can be made. The occupation must be:
- Open & Notorious
If these requirements are not met, the squatter won’t be able to make an adverse possession claim. Let’s take a look at what each of these means.
In the legal sense used here, ‘hostile’ doesn’t mean violent or dangerous. As a matter of face, the trespasser doesn’t have to have any type of negative intent at all, regardless of their threat to the interests of the property owner. Instead, there are three definitions that can be used for ‘hostile’ in this sense.
- Simple Occupation. This rule is followed by most states today and only requires that the trespasser is using the land. They don’t necessarily have to know that the land belongs to someone else.
- Awareness of Trespassing. This rule states that trespasser must be aware that they have no legal right to be on the property. They have to know that they are trespassing.
- Good Faith Mistake. Some states have a provision in place that allows for trespassers to attempt to obtain adverse possession if they have a faulty document or have made an honest mistake. If they have documents that are not valid but they believe, in good faith, that they are, this might be enough for them to begin a claim.
Actual possession requires that a trespasser is physically present on the property and are treating it as if they were an owner. An easy way to establish actual possession is to document efforts to maintain, improve, or beautify the property (as mentioned above).
Open & Notorious Possession
“Open and Notorious” simply means that it must be obvious to anyone – even a landowner who makes a reasonable effort to investigate – that squatters are living on the property. Hiding their occupation makes squatters ineligible for adverse possession.
The trespasser must possess the land exclusively. They cannot share possession with strangers, the owner, other tenants, or even other squatters.
The squatter must reside at the property for an uninterrupted period of time. This means that the trespasser cannot leave for weeks or months and then return, claiming that they have lived there the entire time. In Georgia, they must reside on the property for 20 continuous years to begin an adverse possession claim (or 7 with color of title).
Color of Title
When looking up squatters rights, you’ve undoubtedly come across the term ‘color of title’. This essential means ownership of a property without one or more of the proper documents or legal registrations. The possession isn’t ‘regular’. If the trespasser has a reasonable color of title claim to the property, they only have to live there continuously for 7 years instead of the standard 20 years for the state.
A squatter can claim color of title after successfully completing an adverse possession claim.
Do Squatters Have to Pay Property Taxes?
Some states require squatters to pay property taxes in order to make an adverse possession claim. Georgia doesn’t have such a requirement, so squatters do not have to pay property taxes in Georgia.
How to Get Rid of Squatters
In some cases, squatters can be removed as trespassers. However, if they meet the criteria for adverse possession, the situation gets a little more complicated. Often, if the squatters can produce even false papers stating that they have a claim, the police won’t remove them (as doing so leaves them open to a lawsuit.
In most cases, squatters who meet any of the adverse possession criteria will need to be evicted.
The law is somewhat different if the landowner is disabled. A legal disability can mean that the landowner is a minor, is not of sound mind, or is imprisoned. In Georgia, the occupation time required (in this case, 7 or 20 years) doesn’t begin until the landowner’s legal disability is dropped. This can mean that they come of age, regain sanity, or are released from prison.
If you need to evict the squatter after all, you must start with an eviction notice. Georgia doesn’t specify time limits that you have to give the squatter as a tenant. It can be as little as 24 hours or as many as 10 days. Valid eviction reasons are nonpayment of rent and a violation of the lease or rental agreement.
Whatever time limit you choose, you can file an eviction after the time has expired. The process can take anywhere from a few weeks to much longer if the squatter challenges the eviction. Still, without a great deal of convincing, the ruling will most often be in favor of the landlord or owner.
In Georgia, a landowner who has won an eviction case will need to file for a Writ of Possession. This is paperwork that can then be passed to the town sheriff or constable. Once the sheriff receives a valid Writ of Possession, they have the authority to remove the squatters from the property. Local law enforcement cannot act on this Writ, and self-eviction is illegal in Georgia.
If the squatter leaves on their own, there is no guidance on what to do with any personal property left behind. It’s a good idea to hold onto it for a reasonable amount of time and to work to return it if possible.
If the squatter is removed by the sheriff, any personal property left behind is considered abandoned. The landowner doesn’t need to make any effort to return it and can sell or dispose of it as they see fit.
Tips for Protecting Yourself from Squatters
- Inspect the property regularly.
- Make sure that the property is secured. Block all entrances, close all doors, and make sure that all doors and windows are locked.
- Post ‘No Trespassing’ signs on the property. This is especially important if it is unoccupied.
- Serve squatters with written notice as soon as you realize that they are there.
- Offer to rent the property to the squatters.
- Call the sheriff (not the local police) to remove squatters from the premises if they do not leave.
- Hire a lawyer. You might need to file an eviction with the court if the squatters refuse to leave, and it’s always good to have legal counsel on your side before taking any actions.
Squatters are a land owner’s worst nightmare. By arming yourself with the right legal knowledge and taking the correct provisions against squatters, you can avoid an adverse possession claim on your property.