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, 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 Minnesota, it takes 15 years of continuous occupation in order for a squatter to make an adverse possession claim (Minn. Stat. Ann. §§ 600.5801, 5851). They must also pay property taxes for a total of 5 consecutive years. 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 requires that the trespasser be physically present on the property. They treat the property like they are 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 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 be able to tell that someone is living there. They must not be trying to hide their occupation.
The trespasser must exclusively possess the land. This means that they cannot share the property with other tenants, strangers, other squatters, or the owner themselves.
The squatter or trespasser must reside on the property for the entire 15 years required for an adverse possession claim. They cannot leave for any significant amount of time (weeks, months, or any other length of time) and then return and claim they have lived there the entire time. The time the squatters reside on the property must be uninterrupted.
Color of Title
You’ve probably come across the term ‘color of title’ during your research into squatter’s rights. This simply means that the ownership of any given property is not ‘regular’. The owner might be missing a required document or one or more of the proper legal registrations. Some states have provisions for color of title, but Minnesota isn’t one of them. Having this type of documentation won’t reduce the required continuous occupation time, but it can help legitimize your adverse possession claim.
After an adverse possession claim has been successfully completed, the squatter will be able to claim color of title.
Do Squatters Have to Pay Property Taxes?
In Minnesota, a squatter must pay property taxes for at least 5 consecutive years in order to make an adverse possession claim. While other states require payment for every year the squatter lives on a property or else shorten the time you must live on a property if you do pay taxes, that isn’t the case in Minnesota.
How to Get Rid of Squatters
Minnesota doesn’t have any specific laws that help landowners get rid of squatters. A landowner who needs to get rid of a squatter will need to go through a standard eviction process to legally remove them.
However, Minnesota does have a disability provision. This allows an adverse possession claim to be delayed for 5 years in the event of a legally disabled landowner (one who is imprisoned or legally incompetent). The exception here is if the landowner is an infant.
The landowner also has 1 year after their disability is lifted ( they come of age, regain competency, or are released from prison) to reclaim their property or dispute an adverse possession claim.
Fortunately for landowners dealing with squatters in Minnesota, only a small portion of evictions require a notice. Since squatters don’t have a rental agreement, you can go file an eviction immediately without being required to wait for a notice term to have passed.
However, if the tenant is a tenant at will or has failed to pay rent, a landowner must submit a 14-day notice and allow it to expire before they can file an eviction with the courts.
The squatter may choose to dispute this eviction, but if a squatter truly has no right to be on the property, this rarely works in their favor. The only thing they gain from it is possibly staying on the property for longer.
In most cases concerning squatters, the ruling will be in favor of the landowner. Even after the eviction is successful, a landowner must not self-evict the squatter. This includes actions such as shutting off the utilities or changing the locks. They must wait until a law enforcement officer can force the squatter to leave if they don’t do it on their own. Any of these actions may leave a landowner open to a lawsuit.
If you find that the squatter has left behind any personal property, it must be stored for 28 days. At the end of the 28 days, the landowner may dispose of the property as they see fit, and might even be able to sue the squatter for any storage fees that this incurs. The exception is if the landowner plans on selling the property. If that’s the case, the landowner must give the squatter 14 days to claim the property.
Please note that anytime you are dealing with a squatter, you should call the sheriff and not the local police. The sheriff has a different jurisdiction than local law enforcement, and will, therefore, be able to help you with a squatter-specific situation. The local police may remove trespassers, but that is where their jurisdiction ends.
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.