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 South Dakota
- How to Get Rid of Squatters: Judicial eviction, specifically serving 3-Day Notice to Quit
- Required Time of Occupation: 20 years of continuous possession; 10 years for squatters with color of title and paid property taxes
- Color of Title: Required for the entire duration of occupation
- Property Taxes: Not required, but decreases min. length of occupation to 10 from 20
Who is Considered a Squatter in South Dakota?
A squatter is someone who occupies an abandoned, unoccupied, or foreclosed building 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 more common than you might think.
Isn’t that Trespassing?
Squatting isn’t 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 property owner or landlord has established that the individual in question is unwelcome.
Keep the following in mind:
- Squatters or trespassers may falsely claim that they have a right to be on the property. They might accomplish this by presenting fraudulent documents such as fake deeds to the landowner or law enforcement. This is illegal.
- Squatters do have rights, but they must fulfill the requirements for adverse possession to take advantage of them. If they do not fulfill 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 the property (planting flowers, removing debris, etc.), they may be able to avoid prosecution for trespassing.
- If there is a legitimate emergency, a person who gained access to a property without authorization or permission may be exempt from trespassing.
- The property must not be in use for squatters to make an adverse possession claim.
What About Holdover Tenants?
Holdover tenants, or tenants at sufferance, are tenants who will not 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 can 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. At this point, they are considered a criminal trespasser instead
Understanding Adverse Possession in South Dakota
After residing on a property for a certain amount of time, a squatter can gain legal ownership of a property through the process of adverse possession. In South Dakota, a squatter must possess the property continuously for a period of 20 years before they can make an adverse possession claim (S.D. Codified Laws Ann. §§ 15-3-1, et seq.). This period is reduced to 10 years if the squatter has color of title and is paying taxes on the property.
At this point, the squatter is no longer considered a criminal trespasser. Once an adverse possession claim has been made, the squatter has legal permission to remain on the property.
In the U.S., there are five distinct legal requirements that the squatter must meet before they can make an adverse possession claim. The occupation must be:
- Hostile – honest belief that they are the owner therefore 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.
If the squatters do not meet these five requirements, they do not have grounds for adverse possession. Additionally, squatters must:
- Cultivate or improve the land.
- Protect the land with a substantial enclosure; or
- If the land is not enclosed, then must be used for the supply of fuel or fencing timber for the purpose of husbandry or by the use of the squatter.
Let’s take a look at what each of these terms mean.
“Hostile” doesn’t necessarily mean dangerous or violent. In the legal sense, hostile has three definitions.
- Simple Occupation. This rule is followed by most states today. It defines ‘hostile’ as a 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 be aware that their use of the land or building is trespassing. They know that they have no legal right to be on the property.
- Good Faith Mistake. Many states have a provision for squatters to believe that they do have a legal right to be on the property. This requires that the squatter make a good faith mistake in occupying the property, most often by relying on an invalid or incorrect deed. In other words, they are unaware of the property’s current legal status and are using the property “in good faith”.
Actual possession requires that the trespasser is physically present on the property and using the land as if they are an owner.
In South Dakota, a squatter must make improvements to the property to make an adverse possession claim, and improvements fall under the ‘actual possession’ requirement.
Any efforts that the squatter makes to beautify the property, clean up debris, or otherwise perform regular maintenance can be considered actual possession.
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 a squatter is occupying the property. They must not attempt to hide the fact that they are living there.
The squatter must be the only one possessing the land. They cannot share occupancy with the owner, other tenants, the landlord, or other squatters or trespassers.
A squatter must reside on the property for 20 continuous years in order to qualify for adverse possession in South Dakota. The squatter cannot leave for a number of weeks or months, return later, and then claim the time they were gone as part of their continuous occupation time.
Color of Title
You may have come across the term ‘color of title’ during your research into squatter’s rights. Essentially, color of title means that the ownership of the property is not ‘regular’. The owner is missing one of more of the correct legal documents, memorials, or registrations.
In South Dakota, a squatter must have color of title to make an adverse possession claim. They must hold color of title for the entire time that they occupy the property, so they believe that they belong on the property or have some proof that they do.
A squatter who has successfully completed an adverse possession claim has color of title, too.
Do Squatters Have to Pay Property Taxes in South Dakota?
In South Dakota, a squatter does not necessarily have to pay property taxes in order to make an adverse possession claim. However, if they do pay property taxes (and have color of title) they must occupy the property for 10 years to begin an adverse possession claim which is decreased from the standard 20 years in South Dakota.
How to Get Rid of Squatters in South Dakota
Unlike some states, South Dakota does not have any specific laws regarding squatting cases specifically. To get rid of squatters, a landowner must go through a judicial eviction process when all other methods have failed.
However, there is a provision for a disabled landowner. If the landowner is under the age of 21, imprisoned, or legally incompetent, their land cannot be the subject of an adverse possession claim until either 20 years has passed or their disability is lifted. If their disability is lifted (either they come of age, are released from prison, or regain sanity), they have an additional 10 years to reclaim their land.
For all other situations, a landowner must begin a formal eviction process. This process begins with an eviction notice and there are several landowners can issue:
- Nonpayment of Rent – A landowner may issue a 3-Day Notice to Quit for nonpayment of rent. This notice informs the squatter that they have three days to move off the property due to a failure to pay rent.
- No Lease/End of Lease – If there is no lease or the tenant stays at the rental unit after the rental term has expired, the landowner can issue a notice to quit. The notice period depends on the type of tenancy, for week-to-week tenancies the landowner shall issue a 7-Day Notice to Quit for month-to-month tenancies a 30-Day Notice to Quit shall be issued.
- Illegal Activity – If the squatter commits an illegal act on the property, no prior notice is required before filing an eviction suit.
If the squatter does not move out at the end of the notice period, the landowner can go to the county courts and file an eviction. A hearing will be scheduled, and both the landowner and the squatter will be summoned to attend.
If an eviction is granted by the court, an Execution for Possession is issued and this is the squatter’s final notice to vacate before the sheriff returns to the property to forcibly remove them.
It is important to note that a landowner should not attempt to remove the squatter on their own. Any measures taken to force a squatter to leave (such as turning off the utilities, changing the locks, or attempting to physically remove the squatter yourself) are illegal and can open the landowner up to a lawsuit.
If the squatter leaves personal property behind after they are removed, the landowner must keep it safe for a certain amount of time. If the property is worth less than $500, the landowner may dispose of it after 10 days has passed. Although it’s not required, it is customary to provide the squatter with a written notice to retrieve their belongings. If the property is worth more than $500, the landowner must store it for 30 days before they can dispose of it.
Contact the sheriff rather than local law enforcement when it comes to squatters. While local law enforcement may be able to remove criminal trespassers, they cannot help with squatters. Only sheriffs or constables have the authority to remove a squatter.
Tips for Protecting Yourself from Squatters in South Dakota
- Inspect the property regularly.
- Secure the property (block all entrances, lock all doors and windows, etc.).
- Install a “No Trespassing” sign, especially if it is unoccupied.
- Pay property taxes in a timely manner.
- Serve written notices as soon as you realize there are squatters 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. In some cases, you may need to take legal action against a squatter, and having the right counsel can make all of the difference.
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 South Dakota Codified Laws Ann. §§ 15-3-1, et seq for more information.