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 a squatter has a color of title and paid property taxes for the 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 common in the United States.
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.
- Squatters can be complete strangers or even neighbors who want to obtain title to the land.
There are exceptions to the rule.
- If a person beautifies an abandoned or unoccupied property (by removing debris, planting flowers, or making other improvements, etc.) 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.
Read more about tenants at will here.
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 U.S., there are five distinct legal requirements that a squatter must meet before they can make an adverse possession claim. The occupation must be:
- Hostile – without permission and against the right of the true owner.
- Actual – exercising control over the real property.
- Open & Notorious – using the property as the owner would and not hiding his/her occupancy.
- Exclusive – in the possession of the individual occupying the real property alone.
- Continuous – staying on the property for 20 years; reduced to 10 if squatter has color of title and paid property taxes for entire time of occupation
If these five requirements are not met by the squatter, then they do not have grounds for adverse possession.
Let’s take a look at what each of these terms mean.
“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 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 must 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 must 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 must 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 or 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 possessed and occupied in the following way:
- Improved or cultivated.
- Protected by an enclosure (fenced).
- If the land is not enclosed, then it must be used for the supply of fuel or fencing timber for husbandry or for the ordinary use of the squatter.
- Regarding farmland or a single lot, the land must have been partly improved, for the remaining part of the land that has been left not enclosed or uncleared it must be deemed to have been occupied for the same amount of time as the improved portion of the land.
- Land must be possessed and occupied in the following way:
- 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. 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. 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 this 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 an eviction notice. In North Dakota there are a couple of grounds for eviction.
- 3-Day Notice to Pay – A landowner may issue this notice to a squatter with a specified amount of rent due, if the squatter does pay the landowner within 3 days, they may proceed with the eviction process.
- No Lease/End of Lease – If there was no lease or the lease term has expired, a landowner can issue a notice to quit depending on the type of tenancy. For month-to-month tenancies, a landowner shall provide a 30-Day Notice to Quit, for all other tenancies landowners must give squatters/tenants as much notice as the rent payment period or 30 days’ notice (whichever is less).
If the eviction is granted, a Writ of Execution shall be issued, and the sheriff must deliver the writ to the squatter. The squatter then has a notice period determined by the court to vacate. If they do not leave, the sheriff shall forcibly 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, a notice shall be sent to their last known residence, and it shall be stored for 28 days. The landowner may sell or dispose of the property after 28 days.
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.
- Pay property taxes in a timely manner.
- 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. ND Cent. Code § 28-01-04 and § 47-06-03 for more information.