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 building (usually residential) or area of land without lawful permission. This means that they do not rent or own the property. Despite this, squatting is legal in the United States. It may be more common than you think.
Isn’t that Trespassing?
Squatting is not necessarily trespassing. Trespassing is a criminal offense. Squatting, on the other hand, is usually civil in nature. However, squatting can be treated like a criminal behavior if the property owner has established that the squatter is unwelcome.
Keep the following in mind:
- Squatters or trespassers may falsely claim a right to be on the property. They may do this by presenting false papers or fraudulent deeds to the owner or law enforcement. This is illegal.
- Squatters do have rights, but they must fulfill the requirements for adverse possession first. If they do not meet the requirements outlined below, they can be arrested as criminal trespassing.
- Many homeless people will take advantage of squatters 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 plants flowers, removes debris, or otherwise beautifies, they may be able to avoid prosecution for criminal trespass. This is true for both residential and industrial properties.
- If there is a legitimate emergency, a person who accesses the property without authorization or permission 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, also referred to as tenants at sufferance, are tenants who remain on a property after their lease has ended. They are fundamentally different from squatters and must be dealt with in a different way entirely.
In this situation, the tenant may continue to pay rent at the existing rate and terms. If the landlord chooses to accept this without worrying about the legality of the occupancy, the tenant then becomes a ‘tenant at will’. This means that they are on the property ‘at the will’ of the landlord and they can be evicted at any time without notice.
Otherwise, if a holdover tenant receives a notice to quit (or move out), they must leave or be subjected to a lawsuit for unlawful detainer. A holdover tenant will not be able to make an adverse possession claim if they have been told to leave. Thereafter, they are considered a criminal trespasser.
Understanding Adverse Possession
A squatter can claim rights to a property after residing there for a certain amount of time. In Maryland, it takes 20 years of continuous possession for a squatter to make an adverse possession claim (Md. Cts & Jud. Proc. § 5-103,201). When a squatter makes an adverse possession claim, they can gain legal ownership of the property. At this point, the squatter is no longer a criminal trespasser and has lawful permission to remain on the property.
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 met by the squatter, then they do not have grounds for adverse possession. Let’s take a look at what each of these means.
“Hostile” doesn’t necessarily mean violent or dangerous. In the legal sense, hostile can have three definitions.
- Simple Occupation. This rule is followed by most states today. Here, ‘hostile’ is defined as the 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 is trespassing. They have to know that they have no legal right to be on the property.
- Good faith mistake. A few states choose to follow this rule instead. Here, the trespasser has to have made an innocent good faith mistake in occupying the property in the first place, such as by relying on an invalid or incorrect deed. In other words, the squatter was using the property ‘in good faith’ and was unaware of the property’s legal status.
Actual possession requires that the trespasser is physically present on the property and treats it as if they are an owner. This can be established through documentation of any beautification efforts, maintenance, or other measures taken to improve the area.
Open & Notorious Possession
“Open & Notorious” means that it should be obvious to anyone that someone is squatting on the property. Even an owner who has made a reasonable effort to investigate should know that the squatter is there. They must not be trying to hide.
The trespasser must possess the land exclusively. This means that they cannot share possession with strangers, other squatters, tenants, or the owner themselves.
The squatter or trespasser must reside on the property for the entire 20 years required for an adverse possession claim. They cannot leave for weeks, months, or any other length of time and then return and attempt to claim continuous possession. The time they reside on the property must be uninterrupted.
Color of Title
During your research into squatter’s rights, you’ve probably come across the term ‘color of title’. Color of title simply means that the ownership of the property isn’t ‘regular’. They don’t have one or more of the legal documents or registrations. In some states, any sort of color of title claim can greatly help an adverse possession case. Sometimes it can even reduce the required time for continuous possession.
In Maryland, having color of title won’t reduce your continuous possession time period at all. You must still reside on the property for the entire 20 years without interruption. However, it might help win the case.
A squatter who is successful with their adverse possession claim would also have color of title.
Do Squatters Have to Pay Property Taxes?
In some states, squatters have to pay property taxes in order to make an adverse possession claim. In others, paying property taxes might entitle a squatter to possess the land for a reduced period of time before they can make a claim. In Maryland, however, this isn’t the case.
Squatters in Maryland do not have to pay property taxes, and paying property taxes will not decrease the time period required for adverse possession.
How to Get Rid of Squatters
Maryland has a specific procedure to get rid of squatters that do not require the same type of eviction as a tenant might. First, let’s take a look at the disability provisions in the Maryland state law.
If the landowner is legally ‘disabled’ (either because they are a minor, are legally incompetent, or are imprisoned), they have additional time to reclaim their land. After the disability is lifted (when they come of age, regain competency, or are released from prison), they have an additional 3 years to regain control of their property.
Note that all self-eviction actions (including changing locks or shutting off the utilities) are illegal. It may open a landowner up to lawsuits, so make sure that you are always taking lawful measures.
In Maryland, there is a precedent for ‘unlawful detainer’. This is not the same process you would use to evict a tenant or holdover tenant, so be aware that this is specifically for tenants or for guests who refuse to leave (Md. Code, Real Prop. § 14-132).
If you have asked the squatter to leave and they have not, you can file a complaint for wrongful detainer at your county’s District Court. They will set a date and serve the squatter with a summons. At this point, you can request damages for the misuse of your property. However, be aware that most squatters will not be able to pay damages, even if they are court-ordered.
If the ruling is in favor of the landlord, the court will issue an order to the County sheriff. At that point, the squatter will be removed from the property as long as they do not appeal the action. Most squatters will not file an appeal unless they believe they do have a claim to the property.
Please note that you should always contact the sheriff for concerns about a squatter. The local police can be useful if there is a criminal trespasser, but they will not be able to help with a squatter who has even false papers saying that they can be on the property. That’s because the sheriff has a different jurisdiction than the local police and might be able to help or advise you how to proceed.
Tips for Protecting Yourself From Squatters
- Inspect the property regularly.
- Secure the property (block all entrances, close every window, and lock all the doors).
- Put up “No Trespassing” signs on the property. This is especially important if the property is currently unoccupied.
- Serve written notice as soon as you realize squatters are present.
- Offer to rent the property to squatters.
- Call the sheriff (not the local law enforcement) to remove squatters from the premises if they refuse to leave.
- Hire a lawyer. Some cases might require legal action, and having legal counsel on your side will help you take the steps you need to take.
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.