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. This means that they do not rent or own the property they are occupying. 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. 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 squatter’s 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 not squatters and must be dealt with in a different way.
In the situation, the tenant must 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 only on the property at the will of the landlord and 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. Instead, 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 Montana, it takes 5 years of continuous possession for a squatter to make an adverse possession claim (Mont. Civ. C § 70-19-401, 411, 413). When a squatter makes an adverse possession claim, they can gain legal ownership of the property. At this point, they are no longer considered a criminal trespasser and 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 means.
Despite what you might think, “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.
To fulfill the requirement of actual possession, the squatter must be physically present on the property and treat it 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 property.
Open & Notorious Possession
“Open & Notorious” means that it must be obvious to anyone that there is a squatter on the property. Even a property owner who makes a reasonable effort to investigate should be able to tell. The bottom line is that they must not be trying to hide their occupation from anyone.
The trespasser must possess the land exclusively. This means that they cannot share the property with anyone, including the owner, strangers, tenants, or even other squatters.
The squatter or trespasser must reside on the property for the entire 5 years required for an adverse possession claim. They cannot leave for any significant amount of time (weeks or months), and then return and claim that they have lived there the entire time. That squatter’s occupation must be uninterrupted.
Color of Title
You’ve probably come across the term ‘color of title’ while doing your research into squatter’s rights. This simply means that the ownership of the property is not ‘regular’ – the owner is missing one or more of the correct documents or registrations required for a normal ownership. Some states require color of title for an adverse possession claim.
In Montana, having color of title can help an adverse possession case, but it isn’t required. In addition, it won’t decrease the required continuous possession timeframe.
Do Squatters Have to Pay Property Taxes?
In the state of Montana, squatters must pay property taxes in order to make an adverse possession claim. In some states, the required continuous possession time can be reduced if the squatter pays taxes, but in Montana, this isn’t the case.
A squatter must pay taxes for the full five years that they possess the property in order to make a valid adverse possession claim.
How to Get Rid of Squatters
Montana does not have any special provisions to help landowners remove squatters from their properties. Instead, a landowner must go through the legal eviction process in order to stop a squatter from staying on their property.
There is an exception for a disabled landlord, however. If the landowner is under the age of 18, imprisoned, or legally incompetent, they have 5 years from the time their disability is lifted to dispute an adverse possession claim and reclaim their property. Their disability being ‘lifted’ can mean that they come of age, are released from prison, or regain competency.
Otherwise, legal eviction is the only way to remove squatters from your properties. In Montana, there are a number of different eviction notices that a landowner can serve, but only one of them is truly applicable to a squatter situation.
A Three-Day Notice to Pay Rent can be issued immediately and must include the amount of rent that the squatter must pay in order to remain. Most squatters will not pay the amount in this notice. The other available eviction notices assume that there is a rental contract in place, which is of course not the case with a squatter.
After this three-day notice has expired without the payment of rent, the landowner can file an eviction with the court. Squatters may dispute the eviction in order to remain on the property longer. However, in most cases, the ruling is in favor of the landowner.
Even after a successful eviction is completed, a law enforcement officer with a court order is the only one who is capable of removing the squatter. Any self-eviction measures taken by the landowner (such as turning off utilities or changing the locks) are illegal and can open them up to a lawsuit.
If the squatter has left behind any personal property, there are procedures in place to help landowners remove it. First, the landlord must wait 48 hours after the eviction to remove the property, and then they must make a reasonable effort to issue a written notice to the squatter. They have ten days to claim their property from that point.
If they fail to claim the property, the landlord can dispose of it. However, if the squatter does respond, they have an addition 7 days to retrieve the property. The landowner can also charge them for storage and stop them from taking their property until the storage costs have been paid.
Please note that until an eviction is successful, the sheriff is the only one who can help a landowner with a squatting situation. The local law enforcement can deal with criminal trespassers, but they do not have the jurisdiction to remove a squatter (especially if they have false paperwork and claim they are allowed to stay).
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.