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 residing there. In Nebraska, it takes 10 years of continuous possession for a squatter to make an adverse possession claim (Neb. Rev. Stat. § 25-202, 213). If the landowner is legally disabled, this is extended to 20 years. When a squatter claims adverse possession, they can gain legal ownership of the property. At this point, the squatter has lawful permission to remain there and is no longer considered 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. 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 Nebraska (under normal circumstances).
Color of Title
You’ve 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’, and that the person in possession doesn’t have one or more of the correct documents or legal registrations.
Color of title is not required for an adverse possession case in Nebraska. It might help a squatter win a case, as it can strengthen the claim to the property. However, having color of title will not reduce the required 10 years of continuous possession time.
Do Squatters Have to Pay Property Taxes?
Some states require that squatters pay property taxes in order to make an adverse possession claim. Nebraska isn’t one of them. While a squatter may certainly use their receipts and documentation from paying property taxes to help their case, it isn’t required and won’t decrease the required continuous possession time.
How to Get Rid of Squatters
Nebraska doesn’t have any laws that specifically target squatters or help landowners remove them. Instead, a landowner must go through a civil eviction in order to have squatters removed from the property.
However, there is a different set of procedures for landowners with legal disabilities. If the landowner is under the age of 18, legally incompetent, or imprisoned, a squatter must continuously possess the land for 20 years instead of the usual 10 years. In addition, the landowner has 10 years after the disability is lifted (by coming of age, regaining competency, or being released from prison) to reclaim their land.
To remove a squatter in Nebraska, you must file a civil eviction. The most common and effective notice for squatters is the 3-day Notice to Quit, which can be served after the tenant or squatter refuses to pay the rent. This notice must include a dollar amount that can be paid in order to stay on the property; in most cases, the squatter will not pay this amount.
This notice can only be served by the Sheriff, so you must call and get the sheriff involved before it can be legally served. Please note that local law enforcement can help with a criminal trespasser, but only a sheriff can help with a squatting situation.
If the squatter doesn’t pay, the landlord must serve a Petition for Restitution with the county or district clerk. This is the official eviction filing. The landowner must also serve a Summons and Complaint notice within 3 days, and return it after 5 business days. These notices are also served via the Sheriff. After this, a trial date will be set between 10-14 days after the notice is received.
In most cases, unless the landlord has taken measures to self-evict (such as turning off the utilities or changing the locks, which is illegal), the court will rule in favor of the landlord. After a successful trial, a landlord can request a Writ of Restitution. This Writ allows the Sheriff or constable to give the tenant only 3 days to vacate the premises.
After the sheriff appears to evict the tenant, the landowner has to has someone other than the sheriff to physically remove the remaining personal property left by the tenant.
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.