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 Hawaii
- How to Get Rid of Squatters: Treat as trespassers if no lease; otherwise, serve 5-day notice to pay
- Required Time of Occupation: 20 years
- Color of Title: Not required; can extend to good faith mistake
- Property Taxes: Not required
Who is Considered a Squatter in Hawaii?
A squatter is someone who chooses to occupy an unoccupied, abandoned or foreclosed building or area of land without lawful permission. This is usually done with residential properties in an attempt to live without paying rent or mortgage. This means that they don’t own the property or rent it. Despite this, squatting is legal in most parts of the United States and it’s actually a common practice.
Isn’t That Trespassing?
Squatting is not necessarily trespassing, though they are closely related. Trespassing is a criminal offense, while squatting is usually civil in nature. However, squatting can be treated as criminal behavior if the landlord or property owner has established that an individual is not welcome.
Keep the following in mind.
- In Hawaii, squatting is illegal. All squatters can be treated like trespassers unless they produce documents detailing their right to occupy the property.
- Squatters or trespassers can present false or fraudulent papers to the owner or law enforcement. This is illegal, but you may still have to go through legal processes to get rid of them.
- Squatters do have rights, but they must fulfill the requirements for adverse possession. If they don’t, they can be arrested as criminal trespassers.
- Many homeless people attempt to take advantage of squatter’s rights laws to gain ownership of a property without having to pay rent or mortgage.
There are exceptions to this rule.
- If a person beautifies a property (by planting flowers, landscaping, removing debris or cleaning up), they could possibly avoid prosecution for trespass.
- If there is a legitimate emergency, a person who accesses a property without permission may be exempt from trespassing.
- The property must not be used or occupied in order for squatters to begin the process for 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 has ended. In this situation, they must continue to pay rent at the existing rate and terms. The landlord may choose to accept this without admitting the legality of the occupancy.
If a landlord does continue to accept rent, then the tenant becomes a tenant at will. They are on the property “at the landlord’s” will and can be evicted at any time without notice.
Otherwise, the landlord may issue a notice to quit (or move out). If the tenant doesn’t leave after receiving this notice, they will be subject to a lawsuit for unlawful detainer. A holdover tenant will not be able to claim adverse possession if they have been told to leave. At this point, they are considered a criminal trespasser instead.
Understanding Adverse Possession in Hawaii
A squatter may be able to claim ownership of a property after a certain amount of time residing there. In Hawaii, it takes 20 years of continuous occupation for a squatter to make an adverse possession claim (HRS § 657-31.5, et seq). Making this claim means that they have the opportunity to gain legal ownership of the property. At this point, the squatter is no longer a criminal trespasser and has lawful permission to remain there.
In the US, there are five distinct legal requirements that have to be met by the squatter before an adverse possession claim can be made. The occupation must be:
- Open & Notorious
Hostile doesn’t necessarily mean violent or dangerous. In the legal sense as it relates to adverse possession, ‘hostile’ has three definitions.
- Simple Occupation. This rule is followed by most states today, and defines ‘hostile’ as a mere occupation of the land. The trespasser doesn’t have to know that the land belongs to someone else.
- Awareness of Trespassing. This rule requires that the trespasser is aware that his or her use of the property amounts of trespassing (meaning that they know that they have no legal right to be on the property).
- Good Faith Mistake. This requires that the trespasser has made an innocent, good faith mistake in occupying the property in the first place. This can mean that they are relying on an incorrect or invalid deed. In other words, the squatter is using the property “in good faith” and is unaware of the property’s current legal status.
Actual possession requires that the trespasser be physically present on the property and treat it as if they were an owner. This can be established by documenting the trespasser’s efforts to maintain and make improvements to the property. The beautification of the premises, such as landscaping (as mentioned above) is an example of actual possession of the land.
Open & Notorious Possession
“Open & Notorious” means that it must be obvious to anyone that someone is squatting on the property. This includes a property owner that makes any reasonable effort to investigate. The squatter must not be hiding the fact that they are living there.
The trespasser must possess the land exclusively. This means that they cannot share occupation with strangers, other trespassers, the owner, or any tenants.
The squatter must reside on the property for an uninterrupted amount of time. That means they cannot give up the use of the property, return to it after months of being gone, and try to claim that they have been there the entire time. In Hawaii, they must possess the land for 20 continuous years before they can make an adverse possession claim.
Color of Title
You’ve probably come across the term ‘color of title’ when researching squatter’s rights. This refers to ownership of the property that occurs out of the ordinary, or when one or more required documents or legal memorials is missing. This can also refer to ownership that is missing the proper registration.
A squatter can claim color of title after successfully completing an adverse possession claim. Further, this can extend to good faith mistakes in Hawaii. Any document no matter how valid, that is suspected to give the squatter the right to remain on the property is considered color of title until proven otherwise through a legal process.
How to Get Rid of Squatters in Hawaii
Getting rid of squatters in Hawaii is a bit easier than in some other states. That’s because Hawaii always recognizes squatting as an illegal trespassing matter if there is no lease present. If a landlord has never rented to a squatter, they can be removed as criminal trespassers in Hawaii.
If they have color of title or other reason to believe that they can be on the property, this changes. Hawaii makes no provision for squatters with color of title, however; they still must continuously occupy the property for 20 years before they can make an adverse possession claim.
However, if the property owner has a legal ‘disability’ (either they are a minor, legally incompetent, or they are imprisoned), this time is extended. From the time the disability is lifted (the owner comes of age, regains competency, or are released from prison), the owner has five years to regain their property, even if the 20 years continuous possession period has ended.
If the squatters can produce documents, even false ones, that are convincing, law enforcement won’t arrest them. Instead, you might have to go through a legal eviction process to remove squatters from your property.
If the squatters have not caused any damage to the property, you can serve them with a 5-Day Notice to Pay Rent. You will need to include an amount that the squatters will need to pay to remain there. After these five days are up you can file an eviction if they do not pay.
If they have caused or threatened to cause serious damage to the property or anyone on it, you can immediately file an eviction.
A legal eviction can take several weeks. However, if the squatters truly have no right to remain on the property, it will most likely be ruled in favor of the landlord. With a court-ordered eviction, a law enforcement officer can come to the property and physically remove the tenant.
Two things are important here.
- Self-eviction is always illegal. This means that you can’t force the tenant out yourself, even by taking such actions as turning off the utilities.
- Always contact the sheriff for removal of a squatter, with or without an eviction. Local police likely can’t do anything unless it is a criminal trespassing case. The sheriff has more authority to remove squatters and evicted tenants than the local police, as they follow different jurisdictions.
If the squatters have left any personal property behind, the landowner must send them a notice to collect the property. After 15 days, the landlord can sell or dispose of the property as they see fit.
Tips for Protecting Yourself from Squatters in Hawaii
- Inspect the property regularly.
- Secure the property. Make sure that all entrances are blocked and that the windows and doors are closed and locked.
- Put up ‘No Trespassing’ signs on the property, especially if it currently unoccupied.
- Serve written notice as soon as you realize that there are squatters present.
- Offer to lease the property to the squatters.
- Call the sheriff to remove squatters from premises if they refuse to leave.
- Hire a lawyer. You might need to take legal action to remove the squatters, and it’s best to have legal counsel at all stages of the process.
Squatters are a landlord’s worst nightmare. Make sure that you are armed with the correct legal knowledge so you can prevent someone from making an adverse possession claim on your property.