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 York
- How to Get Rid of Squatters: Criminal trespassing charge for less than 30 days’ occupation; beyond that, judicial eviction
- Required Time of Occupation: 10 years of continuous occupation
- Color of Title: Required for the entire 10 years of continuous occupation
- Property Taxes: Required for the entire 10 years of continuous occupation
Who is Considered a Squatter in New York?
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 can be treated as a criminal behavior if the landlord or property owner has established that the individual in question is unwelcome.
Keep the following in mind:
- In New York, a squatter who has been residing on a property for 30 days is automatically upgraded to a legal tenant. Landowners must work quickly in order to remove squatters before these 30 days are up.
- Squatters or trespassers may falsely claim a right to be on the property. They can do this by presenting false documents or invalid deeds to law enforcement or property owners. This is always illegal.
- Squatters do have rights, but if they do not fulfill the requirements for adverse possession they can be arrested as criminal trespassers.
- Many homeless people may try 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 land (by planting flowers, removing debris, landscaping, etc) they might be able to avoid prosecution for trespassing.
- If there is a legitimate emergency, a person who accessed the property without authorization 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 or tenants at sufferance are tenants who stay on a property after their lease has ended. In this situation, the tenant is responsible for paying rent at the existing rate and terms. If the landlord chooses to accept this, they can do so without admitting the legality of the occupancy.
If the landlord does choose to continue accepting rent, the tenant becomes a tenant at will — meaning that the tenant is on the property “at the landlord’s will” and can be evicted at any time without notice.
If the landlord instead issues a notice to quit (or move out), the tenant can be subject to a lawsuit for unlawful detainer. A holdover tenant will not be able to make an adverse possession claim if they have already been told to leave. They will be considered a criminal trespasser at this point.
Understanding Adverse Possession in New York
A squatter can claim rights to the property after a certain time of residing there. In New York, it takes 10 years of continuous occupation for a squatter to make an adverse possession claim (NPA § 501, et seq). When a squatter claims adverse possession, they can gain legal ownership of the property. At this point, they are no longer criminal trespassers and they have legal 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 fo 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 York.
Color of Title
New York 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. A squatter must have color of title for the entire 10 years of continuous occupation in order to claim adverse possession in New York.
A squatter can claim color of title after successfully completing an adverse possession claim.
Do Squatters Have to Pay Property Taxes in New York?
In New York, squatters do have to pay property taxes for the entire 10 years of continuous occupation. If they cannot prove that they have paid property taxes for 10 years, a squatter cannot be eligible for an adverse possession claim.
How to Get Rid of Squatters in New York
New York has a unique law regarding trespassers, though it doesn’t govern their removal. If a squatter or trespasser has been on the property for 30 days, they are automatically considered a legal tenant according to New York law. This means that they must be removed with a judicial eviction.
Before these 30 days are up, a squatter can technically be removed as a criminal trespasser. After, a landowner must begin the eviction process in a very specific way, and that starts with an eviction notice.
After a squatter becomes a legal tenant, you can serve them with one of three different notices:
- 14-Day Notice to Pay Rent or Quit: this informs the tenant that they must pay the full amount of rent they owe or move out in 14 days. After those 14 days, the landowner can file an eviction.
- Notice to Cure: This notice applies to tenants who have violated the lease, and gives them 10 days to correct the violation before a Notice of Termination is served.
- Notice of Termination: If the previous Notice to Cure was unheeded, the landowner can issue a Notice of Termination. This gives the tenant 30 days to move out. After this 30 days is up, if the tenant hasn’t moved the landlord can file an eviction.
A tenant may choose to fight the eviction in order to stay on the property longer. Since all squatters are legally tenants after 30 days, there is a chance that the eviction might fall in their favor. The best thing a landowner can do is make sure that they follow eviction laws very closely.
Upon successful completion of an eviction, the sheriff must come to remove the squatter from the property. It is illegal to attempt to make the squatter leave (either by changing the locks or turning off the utilities), even after a successful eviction. Landowners must also not personally remove the squatter, as this can open them up to a lawsuit.
New York doesn’t have any laws to determine what to do with the personal property a squatter leaves behind. It’s considered common practice to alert the squatter, give them a reasonable amount of time to clean it, and then get rid of it if it remains unclaimed.
You should always call the sheriff rather than local law enforcement when it comes to getting rid of squatters. It is important that you do not call the local law enforcement with a property matter unless it is a criminal trespasser. For other property matters, you should always work through the sheriff.
Tips for Protecting Yourself from Squatters in New York
- 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 York Consolidated Laws Real Prop. Acts & Procedures Article 5 §§ 501-551 for more information.