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.
Quick Facts for New Mexico
- How to Get Rid of Squatters: Legal “disability” (if applicable), otherwise judicial eviction
- Required Time of Occupation: 10 years of continuous occupation
- Color of Title: Required before squatter can make adverse possession claim
- Property Taxes: Required to make adverse possession claim
Who is Considered a Squatter in New Mexico?
A squatter is someone who is occupying a foreclosed, abandoned, or unoccupied building (usually residential) or area of land without the lawful permission of the owner. This means that the person does not rent or own the property. Despite this, squatting in the united states is legal and more common than you’d think.
Isn’t that Trespassing?
Squatting is not necessarily trespassing. Trespassing is a criminal offense, while squatting is usually a civil matter. However, squatting may be treated as a criminal offense if the landlord or owner has established that the squatter is not welcome.
Keep the following in mind:
- Squatters or trespassers may falsely claim a right to be on the property. For example, they may use false documents or invalid deeds to convince the owner or law enforcement that they have a right to be there. This is always illegal.
- Even though squatters do have rights, if they do not fulfill the requirements for adverse possession, they can be arrested as criminal trespassers.
- Many homeless people attempt to take advantage of squatter’s rights laws so that they can gain legal ownership of the property without paying rent or a mortgage.
There are exceptions to this rule.
- If a person beautifies an abandoned residential or industrial property, they could avoid prosecution for trespass. Beautification includes planting flowers, cleaning debris, and performing basic landscaping or maintenance.
- If there is a legitimate emergency, someone who has gained access to the property without permission may be exempt from trespassing.
- The property but 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 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 in New Mexico
A squatter can claim rights to the property after a certain time of residing there. In New Mexico, it takes 10 years of continuous occupation for a squatter to make an adverse possession claim (NMSA § 37-1-22 (1978)). When a squatter claims adverse possession, they can gain legal ownership of the property. At this point, the squatter is no longer considered a criminal trespasser and haw lawful permission to remain on the property.
In the US, there are five distinct legal requirements that must be met by the squatter before they can make an adverse possession claim. The occupation must be:
- Open & Notorious
If these five elements are not met, the squatter does 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 must 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 additional rule. This requires that the trespasser has made an innocent good faith mistake in occupying the property in the first place. They may be relying on an invalid or incorrect deed, but they believe that they belong there without any knowledge of the property’s legal status. 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 debris (as mentioned above) 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. Even a landowner who makes a reasonable effort to investigate must be able to tell that a squatter is living on the property. The squatter must not be trying to hide that they are staying there.
The trespasser must be the only one possessing the land. They cannot share possession with the owner, other tenants, other squatters, or strangers.
A 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, return to it later, and try to count the time that the property was abandoned as part of the “continuous” possession time period. As stated previously, 10 years of continuous possession are required for adverse possession in New Mexico.
Color of Title
New Mexico law requires that a squatter have color of title to make an adverse possession claim. You may have come across this term before in your research into squatter’s rights. Essentially ‘color of title’ means that the ownership of a property is not ‘regular’, One ore more of the correct legal documents, memorials, or registrations is missing. This is required before a squatter can make an adverse possession claim in New Mexico.
A squatter can claim color of title after successfully completing an adverse possession claim.
Do Squatters Have to Pay Property Taxes in New Mexico?
In New Mexico, squatters must be able to prove that they have paid property taxes on the land or building they are occupying. If they have not paid taxes (or cannot obtain some verification that they have), they cannot make an adverse possession claim. In some other states, this isn’t a requirement, but New Mexico is somewhat stricter about this.
How to Get Rid of Squatters in New Mexico
There are no special laws in New Mexico that govern the removal of squatters specifically. A landowner will still have to follow the judicial eviction process to get squatters off of their land in this state.
There is a disability provision, however. This means that if the landlord is disabled (either they are underage, imprisoned, or legally incompetent), they have additional time to reclaim their land and prevent an adverse possession claim. After their disability is lifted (either they come of age, are released from prison, or regain competency), they have an additional 2 years to reclaim their property.
In all other cases, a landowner must proceed with eviction by sending an eviction notice. There are two eviction notices available in New Mexico that would work to evict a squatter: the three-day notice to pay rent and the three-day unconditional quit notice.
The three-day notice to pay rent allows the squatter time to pay some amount to remain on the -property and become a regular tenant (N.M. Stat. Ann. § 47-8-33). The amount must be specified in the notice. Most squatters aren’t going to pay the amount.
A three-day unconditional quit notice doesn’t give the squatter a chance to pay. It only notifies them that if they don’t move out in three days they will be served with eviction. This notice can only be used if there is property damage or if the squatter has caused harm or threatened anyone else living on the property and/or the landowner (N.M. Stat. Ann. § 47-8-33).
The squatter may choose to fight the eviction in order to stay on the property for longer, but most of the time the ruling will be in favor of the landlord. Unless the squatter has significant evidence that they belong on the property or that the landowner is evicting them unethically, they seldom win.
After a successful eviction, the court issues a Writ of Restitution that allows a law enforcement officer to remove the squatter from the property. A landowner must never try to force the squatter to leave before the Writ is issued. Measures, like turning off the utilities and changing the locks, can lead to a lawsuit for damages against the landowner. Only law enforcement is capable of removing a squatter from the property.
If there is personal property left behind by the squatter, the landowner must hold onto it for three days. This gives the squatter time to retrieve their property. After those three days are up, the landowner can dispose of the property as they see fit.
Tips for Protecting Yourself from Squatters in New Mexico
- Inspect the property regularly
- Secure the property (make sure all entrances are blocked, doors and windows are locked, etc)
- Put up “No Trespassing” signs on the property, especially if it is unoccupied
- Serve written notice as soon as you realize squatters are present
- Offer to rent the property to squatters
- Call the sheriff (not the local police) to help remove squatters from the premises if they do not leave
- Hire a lawyer – you may need to proceed with a lawsuit to remove the squatters and having the right legal counsel can help
It’s important to arm yourself with the right legal knowledge to prevent someone from making an adverse possession claim on your property. Make sure you refer to New Mexico Statutes 37-1-22 for more information.