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 Idaho
- How to Get Rid of Squatters: File a “forceful detainer” lawsuit against them
- Required Time of Occupation: 20 years
- Color of Title: Required
- Property Taxes: Required for 20 years
Who is Considered a Squatter in Idaho?
A squatter is someone who chooses to occupy a foreclosed, abandoned, or unoccupied building (usually residential) or area of land without lawful permission. This means that the person doesn’t own or rent the property. Even so, squatting is legal and quite common in the United States.
Isn’t that Trespassing?
Squatting isn’t necessarily trespassing. While trespassing is a criminal offense, squatting is usually a civil matter. However, once the landlord or property owner has established that the squatter is unwelcome, it can be treated like a criminal offense.
Keep the following in mind:
- Idaho makes it extremely difficult to make a true adverse possession claim. They have more requirements than a lot of states do, so landowners will nearly always keep their property unless there are extenuating circumstances.
- Squatters or trespassers may falsely claim a right to be on the property. They may accomplish this by presenting false or fraudulent paperwork or documents to the owner or law enforcement. This is always illegal.
- Squatters do have rights, but if they don’t meet the requirements for adverse possession, they can be arrested as criminal trespassers
- Many homeless people take advantage of squatters rights to gain ownership of a property without paying rent or mortgage.
There are exceptions to the rule:
- If a person beautifies an abandoned or unoccupied property (by removing debris, planting flowers, or making other improvements), they could possibly avoid prosecution for trespassing.
- If there is a legitimate emergency, a person who gains access to the property without permission may be exempt from trespassing.
- The property must be unused for squatters to begin the process of an adverse possession claim.
What About Holdover Tenants?
Holdover tenants, otherwise known as ‘tenants at sufferance’, are tenants who refuse to leave the property when their lease has ended. In this situation, the tenant is responsible for continuing to pay rent at the existing rate and with the existing terms.
If the landlord chooses, they can continue to accept the rent without worrying about the legality of the occupancy. In this case, the tenant becomes a ‘tenant at will’. This means that they are only on the property at the landlord’s will. They can be evicted at any time without notice.
However, if a holdover tenant refuses to leave after receiving a notice to quit (move out), they will be subject to a lawsuit for unlawful detainer. A holdover tenant will not be able to claim adverse possession if they have already been asked to leave the property. At this point, they are considered a criminal trespasser.
Understanding Adverse Possession in Idaho
A squatter may be able to claim the rights to a property after a certain amount of time residing there. In Idaho, it takes 20 years of continuous occupation for a squatter to make an adverse possession claim (Idaho Code Section 5-203, et seq). This has been increased significantly from the previous requirement, which was only five years.
When a squatter claims adverse possession, they can gain legal ownership of the property. At this point, the squatter is no longer considered a criminal trespasser and has 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. In Idaho specifically, there are a few additional requirements. The occupation must be:
- Open & Notorious
If squatters do not at least meet these five requirements, they do not have the grounds for adverse possession. Let’s take a look at what each of these means.
“Hostile” doesn’t mean dangerous or violent. In the legal sense, hostile has three definitions.
- Simple occupation. This rule is followed by most states today. It 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 be aware that their use of the land or building is trespassing. They have to know that they have no legal right to be on the property.
- Good faith mistake. Many states have a provision for squatters to believe that they do have a legal right to be on the property. This requires that the squatter make a good faith mistake in occupying the property, most often by relying on an invalid or incorrect deed. In other words, they are unaware of the property’s current legal status and are using the property “in good faith”.
Actual possession requires that the trespasser be physically present and using the land as if they were an owner. It goes further than simply using beautification efforts as an example of actual possession, at least in Idaho.
Here, improvement is actually an additional requirement for an adverse possession claim. If the squatter meets all of the other requirements but has not made any improvements, they will not be able to claim adverse possession in Idaho.
Open & Notorious
“Open and Notorious” means that it has to be obvious to anyone that someone is squatting on the property. Even a landowner who makes a reasonable effort to investigate should be able to tell that the squatter is there. They must not be attempting to hide that they are living there.
The trespasser must be the only one possessing the land. They cannot share occupation with other tenants, the landlord, or even other squatters.
The squatter must reside on the land for the entire 20 years required by the state of Idaho. They cannot leave for months or years and come back, and then claim that time as part of their “continuous” possession claim. There is also no way to reduce this time. In Idaho, they must have lived there continuously for 20 years no matter what.
Color of Title
You’ve probably come across the term ‘color of title’ while researching squatter’s rights in Idaho. It’s actually quite an important aspect of an adverse possession claim in the state.
Essentially, color of title means that someone has gained ownership of the property with it being ‘regular’. Most often, this means that they are missing one or more documents or legal memorials, or the property is not registered properly.
In Idaho, this is one of the additional requirements that must be met to make an adverse possession claim.
After an adverse possession claim is completed successfully, a squatter may also claim color of title.
Do Squatters Have to Pay Property Taxes in Idaho?
In some states, squatters do not have to be present on the property for the entire continuous possession period if they have been paying property taxes. In Idaho, this is not the case.
Paying property taxes is the third additional requirement for an adverse possession claim in Idaho. The squatter must have paid property taxes for the entire 20 years of continuous possession in order to qualify for adverse possession.
How to Get Rid of Squatters in Idaho
Just as it is more difficult for squatters to make an adverse possession claim in Idaho, it’s easier than in most states to remove them. In most states, you might have to go through a lengthy eviction process and treat the squatter as if they were a tenant. Thankfully, Idaho has tried to rectify this with a state law.
First, it’s important to note that Idaho has a disability clause in their squatter’s rights law. This provision is meant to protect legally ‘disabled’ landowners. When the owner is a minor, legally incompetent, or in prison, their land cannot come under an adverse possession claim, no matter how long the squatter has lived there.
Instead, a claim cannot be made until 20 years after the owner’s disability has been lifted (either they come of age, regain competency, or are released from prison).
In Idaho, you must file a lawsuit against a squatter called ‘forcible detainer’ if you want them removed. This can be filed when someone either takes possession of the land by force or threat or takes possession of the land while the owner is absent and refuses to leave once they return.
The first step to filing a forcible detainer suit is to send the squatter an eviction notice. All eviction notices in Idaho are three-day notices, and you can issue one for nonpayment of rent, a violation of the rental agreement, or damages to the building.
After this notice has been served, Idaho Code Section 6-310(4) requires that the Court schedule a trial within 72 hours. At the trial, the burden of proof is on the landowner. They must prove that:
- They are the rightful owners of the property
- That the squatters are currently possessing the property
- That the squatters entered and holds the property forcibly
- That there is no lease between the squatter and the landowner
- They must also provide a convincing description of the property
If the judgment is in favor of the landowner, they must obtain a Writ of Restitution and present it to the sheriff. If the squatter does not leave after this ruling, the sheriff (not the local law enforcement) has the authority to forcibly retake possession of the property.
This law is unique to Idaho and makes it easier to remove squatters from your property than in most other states.
Tips for Protecting Yourself from Squatters in Idaho
- Inspect the property regularly.
- Make sure that the property is secured. Block all entrances, close all windows, and lock every door.
- Put up “No Trespassing” signs on the property, especially if it’s currently unoccupied.
- Serve written notice as soon as you realize squatters are present.
- 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 may need to take legal action to get the squatters to leave, and having the correct legal advice at every step of the journey is key.
Squatters have different rights in different states. Make sure you refer to Idaho Statue Title 5 § 19-5-203 for more information.