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 North Dakota
- How to Get Rid of Squatters: Judicial eviction (in particular, a 3-Day Notice to Quit)
- Required Time of Occupation: 20 years’ continuous possession, reduced to 10 if squatter has color of title and paid property taxes for entire time of occupation
- Color of Title: Required (along with paying property taxes)
- Property Taxes: Required for at least 10 years
Who is Considered a Squatter in North Dakota?
A squatter is someone who occupies a foreclosed, abandoned, or unoccupied building or area of land without lawful permission. This means that the person doesn’t rent or own the property. Even so, squatting is actually legal in the United States and more common than you’d think.
Isn’t that Trespassing?
Squatting isn’t necessarily trespassing. While trespassing is a criminal offense, squatting is usually civil in nature. However, once the landlord or property owner has established that the squatter is unwelcome, it can be treated like a criminal offense.
Keep the following in mind:
- North Dakota’s squatter’s rights (or adverse possession) laws are more complicated than most states’. Make sure that you know how squatters operate and how they might be able to use North Dakota’s special laws in their favor – or how you might use them to prevent an adverse possession claim.
- Squatters or trespassers might falsely claim a right to be on the property. They accomplish this by presenting false or fraudulent paperwork or other documents to the owner or to law enforcement. This is illegal.
- Squatters do have rights, but they must meet the requirements for adverse possession to use them. If they do not meet these requirements, they can be arrested as criminal trespassers.
- Many homeless people try to take advantage of squatters’ rights to gain ownership of a property without paying rent or mortgage.
There are exceptions to the rule.
- If a person beautifies an abandoned or unoccupied property (by removing debris, planting flowers, or making other improvements), they could possibly avoid prosecution for trespassing.
- If there is a legitimate emergency, a person who gains access to the property without permission can be exempt from trespassing.
- The property must not be in use for squatters to begin the process of an adverse possession claim.
What About Holdover Tenants?
Holdover tenants, otherwise known as ‘tenants at sufferance’, are tenants who refuse to leave the property when their lease has ended. In this situation, the tenant is responsible for continuing to pay rent at the existing rate and with the existing terms.
If the landlord chooses, they may continue to accept the rent without worrying about the legality of the occupancy. In this case, the tenant becomes a ‘tenant at will’. This means that they are only on the property at the will of the landlord. They can be evicted at any time without notice.
However, if the holdover tenant receives a notice to quit (or move out) and refuses to leave, they may 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 asked to leave the property. At this point, they are considered a criminal trespasser.
Understanding Adverse Possession in North Dakota
A squatter may be able to claim rights to a property after a certain amount of time residing there. In North Dakota, it takes 20 years of continuous occupation for a squatter to make an adverse possession claim, or 10 years if they have color of title and have been paying taxes on the property (N.D. Cent. Code. Ann. §§ 28-01-04, et seq.; § 47-06-03).
When a squatter claims adverse possession, they can gain legal ownership of the property. At this point, the squatter is no longer a criminal trespasser and has lawful permission to be 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.
In North Dakota, a squatter must also claim the sixth requirement, ‘color of title.’ Let’s take a look at what each of these means.
“Hostile” doesn’t necessarily mean violent or dangerous. In the legal sense, hostile can have three definitions.
- Simple occupation. Most states follow this rule. 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. This rule requires that the trespasser is aware that his or her use of the property is 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 rule instead. Here, the trespasser has to have made an innocent, good faith mistake in occupying the property. They may be relying on an invalid or incorrect deed. In other words, the squatter is using the property ‘in good faith’ and is unaware of the property’s current legal status.
Actual possession requires that the trespasser is physically present on the property and treats it as if they are an owner. This can be established by documenting beautification efforts (as mentioned above), as well as measures that are taken to clean up the property or perform regular maintenance. In North Dakota, making improvements is one way to possess the land, so if a squatter is allowed to make significant improvements they will most likely win an adverse possession case.
In fact, to have color of title in North Dakota, a squatter must have made improvements to the land. We’ll talk more about this later.
Open & Notorious Possession
“Open & Notorious” means that it has to be obvious to anyone that someone is squatting on the property. Even a landowner who makes a reasonable effort to investigate should be able to tell that there is a squatter present. The squatter must not be trying to hide that they are occupying the property.
The trespasser has to possess the land exclusively. This means that the squatter cannot share possession with strangers, other squatters, the owner, or even other tenants.
The squatter must reside on the property for the entire 20 years required for an adverse possession claim. They cannot leave for weeks or months, return later, and then claim the time they were absent as part of their continuous occupation period. The time they reside on the property must be uninterrupted.
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 is not ‘regular’. They do not have one ore more of the legal documents, memorials, or registrations.
In North Dakota, color of title is tricky, and certain parameters can determine the continuous possession time as well as a squatter’s right to claim adverse possession. Here is a simple breakdown of what North Dakota requires.
- Color of title obtained through a written instrument, judgment, or decree.
- Land must be one of the following:
- Enclosed (fenced)
- Used for the supply of fuel/fencing timber for animal husbandry
- Used ordinarily when referring to a farm or single lot’s improvements
- Land must be one of the following:
- Color of title NOT obtained through a written instrument, judgment, or decree.
- Land must be:
- Protected by an enclosure (fence)
- Usually cultivated or improved.
- Land must be:
Having color of title alone will not reduce the required continuous occupation time. However, when a squatter has color of title and has paid property taxes, they only need to possess the property for 10 years before they can make an adverse possession claim.
A squatter can also claim color of title after successfully completing an adverse possession case.
Do Squatters Have to Pay Property Taxes in North Dakota?
In North Dakota, a squatter must pay property taxes to be considered for adverse possession. If the squatter does not have any form of color of title, they must pay taxes for at least 10 years of the required 20 years of continuous occupation.
This requirement is reduced to 10 years overall if the squatter has color of title, though. If that is the case, the squatter must pay taxes for the entire 10 years of reduced continuous occupation time (or else they must wait until 20 years have passed).
How to Get Rid of Squatters in North Dakota
North Dakota doesn’t have any special laws governing the removal of squatters from a property. To remove a squatter legally, a landowner must use the judicial eviction process.
North Dakota also doesn’t have any type of disability provision. Some states will give a landowner with a disability a longer period of time to dispute an adverse possession claim, but that isn’t the case in North Dakota.
Otherwise, the eviction process in North Dakota is rather straightforward. For a squatter specifically, a landowner must begin the process by issuing a 3-Day Notice to Quit. This notice is issued if a tenant fails to pay rent or violates the lease agreement; in the case of squatters, this should be issued for a failure to pay rent.
This notice should include a past-due rent amount that the squatter must pay to remain on the property. Most squatters will not pay the amount. If they do, they can remain as a tenant, so be wary.
If the squatter does not leave the property after the three days are up, the landlord can file a formal legal eviction with the county courts. A hearing will be scheduled and the squatter will be summoned to appear.
Unless the squatter has a very good defense (and a reason to believe that they should be on the property), the judgment will usually be in favor of the landlord. They will be given a date by which they must be moved off of the property.
If they do not leave, the landowner will need to enlist the Sheriff to remove the squatter. Any actions that a landowner takes to force the squatter to leave (either by physically removing them, changing the locks, or turning off the utilities) are illegal and may open the landowner up to a lawsuit.
If the squatter leaves personal property behind, the Sheriff will place it in storage. In order to regain their property, the squatter will have to pay moving costs, storage costs, and a Sheriff’s fee before they can gain access to it.
Tips for Protecting Yourself from Squatters in North Dakota
- Inspect the property regularly
- Make sure that the property is secured. Block all entrances, close all windows, and lock every door.
- Always pay your own property taxes and monitor any improvements to your property.
- Post “No Trespassing” signs on the property, especially if it’s currently unoccupied.
- Serve written notice as soon as you notice that squatters are present.
- Offer to rent the property to the squatters.
- Call the sheriff (not the local law enforcement) to remove squatters from the premises if they do not leave.
- Hire a lawyer. You may need to take legal action to remove squatters, and having the correct legal advice is critical for every step of the journey.
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 North Dakota Century Code Ann. §§ 28-01-04, et seq.§ 47-06-03 for more information.