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 occupied an abandoned, foreclosed, or otherwise abandoned residential building or area of land without lawful permission. This means that they do not rent or own the property. Still, squatting is legal in the United States and 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 Massachusetts, it takes 20 years of continuous possession for a squatter to make an adverse possession claim (MA CC 260 § 21). When a squatter makes an adverse possession claim, they can gain legal ownership of the property. At this point, they are no longer a criminal trespasser and they have 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 requirements 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. They must treat it as if they were an owner. This means that they can beautify the property or otherwise improve it. Presenting documentation of any regular maintenance or clean-up efforts can prove actual possession.
Open & Notorious Possession
“Open & Notorious” means that the occupation has to be obvious to anyone. Even a landowner who makes a reasonable effort to investigate should be able to tell that there is a squatter living on the property. They must not be attempting to hide it.
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 20 uninterrupted years to make an adverse possession claim. They cannot leave for weeks or months, regain control of the property, and try to count that time into their adverse possession claim.
Color of Title
You’ve probably come across the term ‘color of title’ in your research into squatter’s rights. To have color of title simply means that someone owns the property without the ownership being ‘regular’. They may lack some documents or legal registrations that are usually included.
In some states, having color of title is required for adverse possession. Elsewhere, it might reduce the continuous possession time required to make a claim. Unfortunately, in Massachusetts, color of title will not decrease the possession time at all. It may help your case, but it is not required.
Do Squatters Have to Pay Property Taxes?
While some other states require a squatter to pay property taxes, Massachusetts isn’t one of them. Squatters don’t really gain any benefit from paying the property taxes in Massachusetts, outside of the documentation possibly making them look more favorable to the Court.
How to Get Rid of Squatters
Massachusetts does not have a law in place specifically for removing squatters. Throughout most of the state, a squatter must be removed through the standard civil eviction process as if they were a regular tenant. (The exception to this rule is when a property falls under the Boston Housing Authority and the squatter is creating problems).
Massachusetts is also one of the only states that does not have a provision for landowner disabilities.
It’s incredibly important that the landowner does not attempt to engage in self-eviction procedures. Actions such as changing the locks or turning off utilities to the property are illegal. It can lead to a lawsuit against the landowner if they take these actions. Always remember to act within the law to remove squatters from your properties.
There are two different types of evictions in Massachusetts, but the one that will probably be the most effective against squatters is the eviction process for Failure to Pay Rent. This requires the landowner to send the squatter a 14-Day Notice that requires them to pay a certain amount. If they do not pay or move out during this 14-day period, the landlord can file an eviction.
To begin, the landlord has to file a summons and complaint, which requires a small fee. After this is served and the squatter still doesn’t pay rent, they must attend the hearing. In most cases, a judge will not rule in favor of a squatter who has no claim to the property or right to be there.
Ten days after the judgment is entered, the landowner will receive an execution form, which can then be passed to a constable or sheriff. This allows them to physically remove the squatter and all of their personal property from the premises after 48 hours has passed.
Please note that even before you have an Execution form from the court, a landowner must confer directly with the sheriff. Local law enforcement will not be able to help with a squatter, though they can help with criminal trespassers. Only the sheriff will be able to help you.
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.