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 or area of land without lawful permission. The person does not rent or own the property. Despite this, squatting is legal in the United States and more common than you might think.
Isn’t That Trespassing?
Squatting is not necessarily trespassing. Trespassing is a criminal offense, while squatting is usually civil in nature. However, squatting might be treated as a criminal behavior if the landowner or landlord has established that the person in question is not welcome on the property.
Keep the following in mind:
- Squatters or trespassers may attempt to claim a right to be on the property. They can do this by presenting false or fraudulent deeds or paperwork to the owner or law enforcement. This is illegal.
- Squatters do have rights, but they must fulfill the requirements for adverse possession before they can gain them. If they don’t meet these requirements, they can be arrested as criminal trespassers.
- Many homeless people may take try to take advantage of squatter’s rights in order to gain ownership of a property without paying rent or a mortgage.
There are exceptions to the rule:
- If a person beautifies (plants flowers, removes debris, performs general and regular maintenance, etc) an unoccupied or abandoned property (residential or industrial), they can possibly avoid prosecution for trespass.
- In the case of a legitimate emergency, a person who accesses a property without permission may be exempt from trespassing.
- The property must not be in use in order for a squatter 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 Michigan, it takes 15 years of continuous occupation in order for a squatter to make an adverse possession claim (MIC § 600.5801, 5851). When a squatter claims adverse possession, they can gain legal ownership of a property. At this point, the squatter is not a criminal trespasser but has lawful permission to remain on the property.
In the US, there are five distinct legal requirements that the squatter must meet before an adverse possession claim can be made. The occupation must be:
- Open & Notorious
If these five elements are not fulfilled 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 simple occupation of the land. The squatter doesn’t have to know that the land belongs to someone else.
- Awareness of Trespassing. This rule requires that the trespasser be aware that his or her use of the property amounts to 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 alternate rule. Here, the trespasser has to have made an innocent good faith mistake in occupying the property. This can mean that they are relying on an invalid or incorrect deed. In other words, the squatter must be using the property “in good faith” and be unaware of the property’s legal status.
Actual possession means that the squatter must be physically present on the property. They must treat the property as if they were an owner. This can be established through the documentation of any beautification efforts, maintenance, or other measures taken to improve the area.
Open & Notorious Possession
“Open & Notorious” means that the occupation of the land must be obvious to anyone. Even a landowner who makes any reasonable effort to investigate should be able to tell that there is a squatter on the property. The squatter must not be trying to hide their occupation.
The trespasser must possess the land exclusively. This means that they cannot share the property with the owner, other strangers, other squatters, or tenants.
The squatter or trespasser must reside on the property for the entire 15 years required for an adverse possession claim. They cannot leave for weeks or months and then return to claim they have lived there the entire time. The time the squatter resides on the property must be uninterrupted.
Color of Title
‘Color of Title’ is a frequently used term in squatter’s rights cases. It simply means that the ownership of the property is not ‘regular’. The owner may be lacking some required documents or registrations, for example. Some states have provisions specifically for color of title, but Michigan does not.
However, if the squatter has paid taxes for long enough to earn a title from a tax assessor, the continuous possession time is reduced to 10 years. A title from a tax assessor is a type of color of title, so while Michigan doesn’t make room for it specifically, there is a similar law in place.
Do Squatters Have to Pay Property Taxes?
In Michigan, squatters are not required to pay property taxes. They can live on the property for the entire 15 years required for adverse possession without ever paying taxes, and their adverse possession claim may still be valid.
However, if a squatter pays property taxes for long enough, they may be entitled to receive a title from the county tax assessor. If they do obtain this title, it not only acts as color of title, but it reduces the continuous occupation time from 15 years to 10 years. That is, if a squatter can obtain a title from a tax assessor, they must only live on the property for 10 continuous years before making an adverse possession claim.
How to Get Rid of Squatters
In Michigan, there are a few provisions specifically for squatters, and to help landowners remove them from the property. They also have a disability provision, which states that any legally disabled individual (who is a minor, imprisoned, or legally incompetent) has 1 year from the date their disability is lifted (when they come of age, are released from prison, or regain competency) to reclaim their property.
In most states, removing a squatter requires a full legal eviction. That is not the case in Michigan. Here, a new law instated in 2014 allows landowners to take matters into their own hands.
This new law states that the occupants who are on a property illegally or are trespassing can be removed by the landlord via ‘self-help’ (HB 5069/PA 223). This means that the landlord can change the lock and remove the personal belongings of a squatter.
Landowners still cannot physically remove a squatter or trespasser, as this constitutes assault and can result in a lawsuit. However, the squatter can be arrested by the police, and you do have the ability to take some measures that other states will not allow. In almost every other state, taking self-eviction measures are illegal, but that isn’t the case in Michigan.
These laws also elevate the criminal consequences for trespassing, including more dire punishments for individuals who have committed this offense multiple times. It’s a great deterrent for squatters in this state.
With these new laws in place, a landowner can remove squatters quicker than before, and without relying on a lengthy legal eviction. Of course, this new law does not apply to holdover tenants or tenants at will, so be aware of where you stand legally with a tenant.
Please note that only the sheriff can help you with a squatting case. While the local police might be able to remove a trespasser, anything more complicated should be handled under the jurisdiction of the sheriff of your county instead.
Tips for Protecting Yourself From Squatters
- Inspect the property regularly.
- Secure the property (Block entrances, close all windows, lock all doors, etc).
- Put up “No Trespassing” signs on the property, especially if it is currently unoccupied.
- Serve written notice as soon as you realize that 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. In some cases, you may need to take legal action to get a squatter off of your property. Having legal counsel on your side to make sure that you are always acting within the law can be helpful.
Squatters are a land owner’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.