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 the person does not rent or own the property. Despite this, it’s legal and quite common to find squatters in the United States.
Isn’t that Trespassing?
Squatting is not necessarily trespassing. While trespassing is a criminal offense, squatting is civil in nature. However, squatting may be treated as a criminal offense if the landlord or property owner has established that the individual 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. This may include presenting false documents or fraudulent papers to the owners or law enforcement. This is illegal.
- Squatters do have rights, but they can be arrested as criminal trespassers if they do not fulfill the requirements for adverse possession.
- 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 the rule:
- If a person beautifies an abandoned or unoccupied residential or industrial property, they could possibly avoid prosecution for trespassing. This could mean that they’ve planted flowers, removed debris, or performed maintenance on the property.
- In the case of a legitimate emergency, a person who gains access to the property without authorization may be exempt from trespassing.
- The property must not be in use in order for squatters to begin the process of an adverse possession claim.
What About Holdover Tenants?
Holdover tenants are sometimes referred to as tenants at sufferance. These tenants choose to remain on a property after their lease has ended. In this situation, the tenant is responsible for continuing to pay the rent at the existing rate and terms. The landlord can accept the rent without worrying about the legality of the occupancy.
If the landlord continues to accept the rent, the tenant becomes a ‘tenant at will’. The landlord can evict them at any time without notice, as they are 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 Kentucky, it takes 15 years of continuous occupation for a squatter to make an adverse possession claim (KY RS § 413.010 et seq). When a squatter claims adverse possession, they can gain legal ownership of the property. At this point, the squatter has lawful permission to remain on the property and is no longer considered a criminal trespasser.
In the US, there are five distinct legal requirements that a 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 do not have 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” can have three different definitions:
- Simple occupation. This rule defines hostile as the mere occupation of 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 in the first place. This means that they might be relying on an invalid or incorrect 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 squatter is physically present on the property and treat it like they are an owner. This can be established by the squatter’s improvements, and their effort to maintain the property. As mentioned above, the beautification of the premises would be an example of actual possession of the land.
Open & Notorious Possession
“Open & Notorious” means that the possession of the property must be obvious to anyone. 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 attempting to hide that they live there.
The trespasser must possess the land exclusively. They cannot share occupation with strangers, other squatters, the owner, or other tenants.
The squatter has to reside on the property for an uninterrupted amount of time. The trespasser cannot give up the use of the property, return to it weeks or months later, and then attempt to use that time towards their continuous possession time period. In Kentucky, 15 years of continuous possession are required for adverse 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 ownership of the land is not ‘regular’. The owners might not have one or more of the proper legal documents, or the property may not be properly registered.
If the squatter has a color of title claim (through an incorrect deed or some other belief that they have rightful ownership), they may only need to possess the property for 7 continuous years. Of course, the color of title will have to be validated by the Court.
A squatter who has successfully completed an adverse possession claim can also claim color of title.
Do Squatters Have to Pay Property Taxes?
While some states require squatters to pay property taxes to claim adverse possession, Kentucky isn’t one of them. Paying property taxes is not a requirement, and doing so will not shorten the required 15 years of continuous possession. However, it can work to add legitimacy to an adverse possession claim.
How to Get Rid of Squatters
Some states have a specific law in place to help landowners get rid of squatters quickly. However, Kentucky does not. To get rid of squatters in Kentucky, a landowner will need to file a formal eviction with the court.
On the other hand, there is a provision in place for landowners with disabilities. If a landowner has a legal ‘disability’ (they are a minor, imprisoned, or legally incompetent), they have three years after their disability is lifted to refute an adverse possession claim. Having their ‘disability lifted’ can mean that they come of age, are released from prison, or regain competency.
In all other cases, it’s best to serve squatters with a Seven-Day Notice to Pay Rent. This eviction notice should outline an amount that the squatter must pay to remain on the property. In most cases, the squatter will not pay within the seven-day period. After this, the landowner can file a formal eviction notice with the court.
If the squatter chooses to contest the eviction, they may be able to draw the process out unnecessarily. Still, in most legitimate squatter cases the ruling is eventually in favor of the landlord.
After the eviction is complete, the landowner must wait for law enforcement to remove the squatter with a court order. They cannot make any moves to self-evict the squatters, such as changing the locks or turning off the utilities. These measures are illegal and can end in a lawsuit.
Some states have laws regarding what you should do with personal property left behind after an eviction. Kentucky does not outline what should be done with abandoned property, though it is probably best to attempt to contact the squatter about retrieving it. If they do not respond, the personal property can be disposed of in any legal manner.
Please note that you should always call the sheriff in order to deal with squatters. Local law enforcement may be able to deal with criminal trespassers, but squatters are an entirely different matter. Since the jurisdiction of the sheriff is different from that of the local law enforcement, the sheriff is much more likely to be able to help you with a squatter issue.
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. Make sure that you arm yourself with the right legal knowledge to prevent someone from making an adverse possession claim on your property.