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, unoccupied, or foreclosed building or area of land without lawful permission. The person does not rent or own the property. Despite this, squatting is common and legal in the United States.
Isn’t That Trespassing?
Squatting is not necessarily trespassing. Trespassing is a criminal offense, while squatting is usually a civil matter. However, squatting might be treated as a criminal behavior if the landowner or landlord establishes that the person in question is not welcome on the property.
Keep the following in mind:
- Squatters or trespassers might attempt to falsely claim their right to be on the property. They may do this by presenting false or fraudulent papers or deeds to the owner or to law enforcement. This is always illegal.
- Squatters do have rights, but they must fulfill the requirements for adverse possession in order to gain them. If they don’t meet these parameters, they can be arrested as criminal trespassers.
- Many homeless people attempt to take advantage of squatter’s rights to gain ownership of a property without having to pay rent or a mortgage.
There are exceptions to the rule:
- If a person beautifies the property (planting flowers, cleaning up, landscaping, etc) unoccupied or abandoned residential or industrial properties, they could possibly avoid prosecution for trespassing.
- If there is a legitimate emergency, a person who gains access to the property without permission may be exempt from trespassing.
- The property must not be in use in order for squatters to being 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 the property after a certain time of residing there. In Mississippi, it takes 10 years of continuous occupation for a squatter to make an adverse possession claim (Miss. Code. Ann. § 15-1-13, 15). In Mississippi, you must also pay taxes for at least 2 of those years.
In addition, Mississippi has a different set of rules for 16th Section Lands. These lands are usually held in trust for the purpose of public education. With a valid claim to title, a squatter may make an adverse possession claim over 16th Section Lands with 25 years of actual possession instead of the usual 10 (Miss. Code. Ann. § 29-3-7).
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 a criminal trespasser.
In the US, there are five distinct legal requirements that the squatter must meet before they can make an adverse possession claim. 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. In Mississippi, the squatter must also have paid property taxes for at least 2 years to make a claim. Let’s take a look at what each of these means.
“Hostile” doesn’t necessarily mean violent or dangerous. In the legal sense, hostile has three definitions that states may choose to use.
- 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. Using this rule, the trespasser has to be aware that their 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 follow this rule. This requires that the trespasser has made an innocent good faith mistake in occupying the property in the first place. They may have been relying on an invalid or incorrect deed without any knowledge of the property’s current legal status. In other words, they are using the property ‘in good faith’.
Actual possession requires that the trespasser is physically present on the property and treats it as if they are an owner. There are a few ways to establish this, including documenting any beautification or maintenance that the squatter performs. Planting flowers or cleaning up debris (as mentioned before) is an example of actual possession of the land.
Open & Notorious Possession
“Open & Notorious” means that it must be obvious to anyone that someone is squatting on the property. This means that the squatter must not be trying to hide the fact that they live there. Even a property owner who makes a reasonable effort to investigate should be able to tell that the squatter is on the property.
The trespasser must be the only one possessing the land. They cannot share possession with other squatters, the owner, strangers, or tenants.
The squatter must reside on the property for an uninterrupted amount of time. That means that the trespasser cannot give up the use of the property for weeks or months, return to it later, and use the time they were gone as part of the “continuous” possession time period. As stated previously, 10 years of continuous occupation are required for adverse possession in Mississippi (unless the land is a 16th Section Land, in which case 25 years of continuous occupation are required).
Color of Title
You have probably come across the term ‘color of title’ during your research into squatter’s rights. Color of title simply means that the ownership of the property isn’t ‘regular’. The person in possession of the property doesn’t have one or more of the correct documents or registrations.
If the property owner has failed to pay taxes, a squatter may purchase the property’s title over a period of 5 years. After the tax sale, 2 years must pass. After that, a squatter must possess the land under the laws of actual possession (they must be physically present) for 3 years. Then they may buy the title. This qualifies as a valid color of title under Mississippi law (Miss. Code Ann. § 15-1-15).
A squatter can also claim color of title after the successful completion of an adverse possession claim.
Do Squatters Have to Pay Property Taxes?
In Mississippi, squatters must pay property taxes in order to make an adverse possession claim. They must pay property taxes for at least 2 years of the 10 years required for adverse possession.
How to Get Rid of Squatters
Mississippi doesn’t have any specific laws regarding squatter removal. Instead, you must treat the squatter as if they are a tenant and go through an eviction process.
However, there is a provision for disabled landowners and adverse possession. If the landowner is legally disabled (they are a minor, legally incompetent, or imprisoned), they will have an additional 10 years after their disability is lifted (they come of age, are released from prison, or regain competency) to reclaim their property. However, no adverse possession case can be delayed longer than 31 years (Miss. Code Ann § 15-1-7).
Otherwise, a landowner must go through a legal eviction in order to remove the squatter. Any attempt to self-evict the tenant, either by changing the locks or shutting off the utilities, is illegal and can open a landowner up to a potential lawsuit.
Mississipi law requires landowners to have a legal cause to evict tenants. In the case of a squatter, failure to pay rent is the legal cause that needs to be addressed. First, the landowner must send a Three-Day Notice to Pay Rent or Quit. This notice must include an amount that must be paid in order for the squatter to remain (Miss. Code Ann. § 89-7-27).
Most squatters will not pay the amount, but they can choose to fight the eviction. They will most likely end up losing the case, but it will give them additional time to remain on the property.
In most cases, the courts will rule in favor of the landlord when it comes to squatters. Even after winning an eviction, a landowner cannot take measures to remove the tenant or squatter themselves. These actions, including changing the locks or turning off the utilities, are illegal and can open the landlord up to a lawsuit.
Instead, a landowner must wait for a law enforcement officer to arrive and remove the squatter.
After the squatter has been removed, they may have left behind personal property. Mississippi doesn’t have a law specifically telling landlords what to do with it, but it’s generally considered a good idea to contact the squatter and let them know that they have a reasonable amount of time to reclaim their property.
If the property is not claimed in this time frame, the landowner should dispose of it how they see fit.
Please note that, when dealing with squatters, you should always be dealing with the sheriff directly. Sheriffs have different jurisdiction than local law enforcement and are in a much better position to help with squatters. That said, if there is an illegal trespassing situation, you can still call the local law enforcement to help with removal.
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.