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 legal in the United States and more common than you think.
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:
- Nevada has very strict laws about how to handle squatters, but they also make it very easy to remove them if they are on the property without permission. The introduction of laws against unlawful occupancy and housebreaking may be able to stop an adverse possession claim before it gets started.
- 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 a property after a certain time residing there. In Nevada, it takes 5 years of continuous occupation for a squatter to make an adverse possession claim (NRS § 11.070, 110, 150, 180). They must also pay property taxes for the entire length of that time. When a squatter claims adverse possession, they have the opportunity to 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 met, then they do not have grounds to file an adverse possession claim in Nevada. They must also pay taxes for the entire 5 years of continuous possession required. 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, 4 years of continuous occupation are required for adverse possession in Nevada.
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, and the person in possession is lacking one or more of the correct documents or registrations.
If a squatter has color of title, some states will shorten the required continuous possession period. This isn’t the case in Nevada. While color of title isn’t required to make an adverse possession claim, it can certainly help lend a case validity in court.
Do Squatters Have to Pay Property Taxes?
In Nevada, a squatter must pay property taxes in order to make an adverse possession claim. To win an adverse possession case, they must have paid property taxes for the entire 5 years of their continuous possession time.
How to Get Rid of Squatters
In recent years, Nevada has put new laws in place to help make it easier for landowners to remove squatters from their properties. In addition, they also have a provision for landowners with legal disabilities.
If the landowner is a minor, legally incompetent, or imprisoned, they have an additional 2 years after the disability is lifted (when they come of age, regain competency, or are released from prison) to regain control of their property.
However, there are new laws in Nevada that might stop all invalid adverse possession claims from coming to pass. The Unlawful Occupancy law allows the police to remove squatters and charge them with a gross misdemeanor. Before this law passed, the local police could do little with squatters as it was a civil matter. Now, squatters can be arrested at the property (NRS § 205.0817).
If the police are able to make an arrest (as they will be in most cases), a landowner still has to go through a process to legally reclaim the property. This begins with a Notice of Retaking Possession within 24 hours after the arrest. They may also be able to file a Changing of Locks & Submission of Posted Notice. Simply filing these documents can give the landowner protection against re-entry. If the squatter reenters the property without a court order, they can be charged with up to 12 months in jail at this point.
This notice must be posted for 21 days to give the squatter time to take legal action if they feel it is necessary. They can file a Verified Complaint for Reentry, after which the court will schedule a trial within 10 days. It’s important to note that during these 21 days, the property must remain unoccupied. That means that most squatters won’t attempt to file legal action, as they probably aren’t going to win anyway.
Nevada makes it nearly impossible to work the system in order to gain more time on the property in this way. After those 21 days (or after a successful trial if it gets that far), the landowner may reoccupy the property.
But what happens if the police aren’t able to make an arrest? There is a special civil process (much like an eviction) that is directed only at squatters. If the police don’t arrest the squatters when the landlord calls, they can serve the occupants with a 4-day Notice to Surrender. This notice should outline that they can be removed in 24 hours if they have forced entry to the property.
It should also note that they should leave within 4 days if they aren’t going to file an affidavit to oppose the removal. Nevada law NRS § 40.280 outlines the different ways that a property owner must attempt to serve the notice, first by attempting to serve it personally (and with a witness), then leaving it with a person who is at least 14 years old and mailing it to the address, or posting a copy where it can be seen on the property and then mailing it. Otherwise, the landowner can serve the notice through a constable.
At this point, the occupant may leave or file an affidavit with the court. This doesn’t guarantee a hearing. If a hearing is granted, one will be scheduled within 7 judicial days. The removal order will be granted, or the court will give the occupant extra time to leave the property.
If there is personal property left behind after the occupant leaves, the landowner must store the property for 14 days. The squatter is responsible for paying all of the fees associated with moving, inventorying, and storing the property. If it hasn’t been reclaimed within 14 days, the owner can dispose of it however they see fit.
This entire process is streamlined so that the landowner doesn’t have to go through a lengthy eviction process. Also, it can prevent squatters from working the system and staying on the property for longer periods of time.
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.