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 is occupying an abandoned, foreclosed, or unoccupied residential building or area of land without lawful permission. They do not own or rent the property. Despite this, squatting is legal and more common than you’d think.
Isn’t That Trespassing?
Squatting isn’t necessarily trespassing. Trespassing is a criminal offense, while squatting is usually a civil matter. However, squatting may be treated as a criminal behavior if the landlord or property owner establishes that the person in question is unwelcome.
Keep the following in mind:
- Squatters or trespassers may falsely claim that they have a right to be on the property. They might produce fraudulent or false documents to the owner or to law enforcement officers. This is illegal.
- Squatters do have rights, but they must fulfill the requirements for adverse possession to gain them. If they don’t meet these requirements, they can be arrested as criminal trespassers.
- Many homeless people may attempt to take advantage of squatter’s rights in order to gain ownership of a property without having to pay rent or a mortgage.
There are exceptions to this rule:
- If a person beautifies the property (by planting flowers, removing debris, or doing regular maintenance), they might be able to avoid prosecution for trespassing.
- If there is a legitimate emergency, someone who accesses the property without permission may be exempt from trespassing.
- The property must not be in use for a squatter to begin the process of an adverse possession claim.
What About Holdover Tenants?
Holdover tenants, or tenants at sufferance, are tenants who choose to remain on a property after the lease has ended. In this situation, the tenant must continue to pay rent at the existing rate and terms. The landlord can accept the rent without worrying about the legality of the occupancy.
If the landlord chooses to accept the rent, the tenant becomes a ‘tenant at will’. The landlord can evict them at any time without notice, a s they are the only on the property ‘at the will’ of the landlord.
If a holdover tenant receives a notice to quit (or move out) and refuses to leave, 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. They then become a criminal trespasser.
Understanding Adverse Possession
A squatter can claim rights to a property after a certain time residing there. In Kansas, it takes 15 years of continuous occupation for a squatter to make an adverse possession claim (KSS § 60-503). When a squatter claims adverse possession, they can gain legal ownership of the property. At this point, they would no longer be considered a criminal trespasser and they have lawful permission to remain on the property.
In the US, there are five distinct legal requirements that the squatter must meet before they can make an adverse possession claim. The occupation must be:
- Open & Notorious
If these five requirements are not fulfilled by the squatter, they cannot claim adverse possession. Let’s take a look at what each of these means.
“Hostile” doesn’t necessarily mean dangerous or violent. In the legal sense, “hostile” can have three different definitions:
- Simple occupation. This rule defines hostile as the mere occupation fo the land. The trespasser doesn’t have to know that the land belongs to someone else. This rule is followed by most states today.
- Awareness of trespassing. This rule requires that the trespasser is aware that his or her use of the property is trespassing. They have to know that they have no legal right to be on the property.
- Good faith mistake. This requires the trespasser to have made an innocent good faith mistake in occupying the property in0 the first place. They might be relying on an invalid or incorrect deed, but they have to be using the property ‘in good faith’ without being aware of the property’s current legal status.
Actual possession requires that the squatter is physically present on the property and treats it as if they are an owner. If the trespasser has made efforts to maintain and improve the property, documentation of those improvements can be an example of actual possession. Beautification of the premises, as mentioned above, is another example of actual possession of the land.
Open & Notorious Possession
“Open & Notorious” means that their possession of the property must be obvious to anyone. Other people in the community and even a landowner who makes a reasonable effort to investigate should be able to tell that someone is squatting on the property. The squatter must not be trying to hide the fact that they are living there.
The trespasser must be the only one using the land in order to make an adverse possession claim. This means that they cannot share possession with tenants, the owner, other strangers, or even other squatters.
The squatter has to reside on the property for an uninterrupted amount of time. They cannot give up the use of the property and return to it weeks or months later, and then attempt to use that time towards their continuous possession. In Kansas, an adverse possession claim requires 15 years of continuous possession.
Color of Title
You have probably come across the term “color of title” in your research into squatter’s rights. “Color of title” only means that the owner has taken possession of the land in any way that isn’t ‘regular’. This means that they are missing one or more of the important documents they need, or the property isn’t properly registered.
A squatter who has successfully completed an adverse possession claim can claim color of title. While some states have specific color of title rules or provisions where color of title might shorten the required occupation time of a property, but that isn’t the case in Kansas. Color of title might help a squatter win an adverse possession case, but they must still wait the entire 15 years before making a claim.
Do Squatters Have to Pay Property Taxes?
In some states, the squatter must pay taxes to make an adverse possession claim. This may reduce the required occupation time or make it easier for a squatter to gain ownership of the property.
In Kansas, squatters don’t have to pay property taxes. Doing so might help their adverse possession claim in the end, but it isn’t required and doesn’t shorten the 15-year continuous occupation requirement.
How to Get Rid of Squatters
Getting rid of squatters in Kansas can be a quick process despite the absence of any specific squatter removal laws.
However, if the landowner is disabled (a minor, legally incompetent, or imprisoned), there are special rules governing an adverse possession claim. After the disability is lifted (they come of age, regains competency, or are released from prison), they have 2 years to reclaim their property. This extends to death as well – if a disabled landowner dies within the 15-year continuous occupation period, their heirs can claim the property within 2 years after their death.
Kansas does not allow an adverse possession claim to be postponed indefinitely. The longest that this matter can be postponed is 23 years.
For all other cases, a landowner must go through a standard eviction process in order to remove a squatter from their property. Please note that all measures taken to self-evict a tenant by forcing them to leave (changing the locks or shutting off the utilities) are always illegal.
First, you must serve them a written eviction notice. For nonpayment of rent, Kansas law allows a 3-day notice to pay or quit, wherein you have to include an amount that the tenant must pay in order to remain on the property. All other violations (including lease violations) require 14-days of notice. Make sure that you keep your proof of delivery in case the squatter doesn’t leave.
If the squatter doesn’t leave in the time offered by the notice, you can go to the court and file an eviction lawsuit (or forcible detainer). It cannot take more than 14 days to set a hearing, though it may be set in as few as 3 days. Then, the tenant has 10 days to dispute the eviction. Most squatters know that they will not win this, so they rarely attempt to dispute an eviction process.
After a ruling has been reached in the landlord’s favor, the judge specifies a date for the tenant to leave – if they again refuse to leave after this notice, you must obtain a “Writ of Restitution” from the court. Within 10 days, the local sheriff’s office will remove the tenant.
If the squatter leaves any personal property behind, the landlord must publish a notice in the local paper within 15 days stating when they plan to get rid of the property. Then, they must mail a copy to the squatter’s last known address. If after 30 days the property is not claimed, the landlord may sell the property or dispose of it if they see fit.
Please note that you should call the sheriff (not the local police) to help you deal with squatters. The local police don’t have the jurisdiction to help you with squatters in the same way, and they will only be able to remove criminal trespassers.
Tips for Protecting Yourself From Squatters
- Inspect the property regularly
- Make sure that the property is secured (block all entrances, close all windows, and lock all doors)
- Put up “No Trespassing” signs on the property, especially if it is currently unoccupied
- As soon as you realize that squatters are present, serve written notice
- 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. In some cases, you might have to file a lawsuit to remove the squatter from your property. Having legal counsel can make all the difference.
Squatters are a landlord’s worst nightmare. Arming yourself with the right legal knowledge can help you avoid any adverse possession claims on your property.