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 Virginia
- How to Get Rid of Squatters: Serving an eviction notice (usu. 5-Day Notice to Pay Rent or Quit)
- Required Time of Occupation: 15 years of continuous occupation
- Color of Title: Required for all 15 years of continuous occupation
- Property Taxes: Not required
Who is Considered a Squatter in Virginia?
A squatter is someone who occupies an abandoned, foreclosed, or unoccupied residential building or area of land without the lawful permission of the owner. This means that the person doesn’t rent or own the property. Even so, squatting is 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 matter, squatting is usually civil in nature. Once the landlord or property owner has established that the squatter is unwelcome, however, it can be treated like a criminal offense.
Keep the following in mind:
- Squatters may falsely claim a right to be on the property by presenting the owner or law enforcement with false or fraudulent paperwork. This is always illegal.
- Squatters do have rights, but they must meet the requirements for adverse possession in order 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 in order to gain ownership over a property without paying rent or a mortgage.
There are exceptions to this rule:
- If a person beautifies an abandoned or unoccupied property (by removing debris, planting flowers, or making other improvements), they could avoid prosecution for trespassing.
- If there is a legitimate emergency, a person who gains access to a property without permission can 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 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 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 there 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 (move out) and refuses to leave, they 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 asked to leave the property. At this point, they are considered a criminal trespasser.
Understanding Adverse Possession in Virginia
A squatter can attempt to claim rights to a property after a certain time residing there. In Virginia, it takes 15 years of continuous possession for a squatter to make an adverse possession claim (Va. Code Ann. § 8.01-236,237). When a squatter claims adverse possession, they may gain legal ownership of the property. During the claim, the squatter is no longer considered a criminal trespasser. They have lawful permission to remain 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.
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 alternative definitions.
- 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. 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 in the first place, such as by relying on an invalid or incorrect deed. In other words, the squatter was using the property ‘in good faith’ and was unaware of the property’s 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). Any improvements made to the property can prove actual possession.
Open & Notorious Possession
It must be obvious to anyone that a squatter is residing on the property. They must not be trying to hide that they are living there. Even a landowner who makes a reasonable effort to investigate should be able to tell that someone is squatting on the property.
The squatter must possess the land exclusively. This means that the trespasser cannot share possession with other tenants, the owner, strangers, or other squatters.
The squatter must reside on the property for the entire 15 years required for an adverse possession claim in West Virginia. They cannot leave for weeks or months, return later, and then claim the time they were absent as part of their continuous possession period. The time the squatter resides on the property must be uninterrupted.
Color of Title
You have 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’. The owner is missing one or more of the correct legal documents, memorials, or registrations.
In Virginia, color of title is required in order to make an adverse possession claim. A squatter seeking to claim adverse possession must have some valid form of color of title for all 15 years of their continuous occupation time or they cannot make a claim.
A squatter who has successfully completed an adverse possession claim has color of title as well.
Do Squatters Have to Pay Property Taxes in Virginia?
While some states require that squatters pay property taxes in order to make an adverse possession claim, Virginia is not one of them. Squatters do not have to pay property taxes in order to make an adverse possession claim in Virginia.
How to Get Rid of Squatters in Virginia
There are no special laws in Virginia that govern how a landowner can remove a squatter. Instead, landowners faced with a squatting situation must evict the squatter via the judicial eviction process.
In Virginia, an adverse possession claim cannot be brought against a property owned by a legally disabled person. If the landowner is under the age of 18, imprisoned, or legally incompetent, their land cannot be seized while they are still disabled. However, a claim can only be put off for a maximum of 25 years. If the disabled landowner’s disability does not lift (they come of age, are released from prison, or regain competency) after 25 years have passed, an adverse possession claim may be brought against their properties.
The eviction process begins with an eviction notice. In Virginia, there are several notices that may be issued; however, the most applicable to a squatting situation is the Five-Day Notice to Pay Rent or Quit. This notice must outline an amount that a squatter must pay in order to remain on the property, and if the amount is not paid (or the squatter remains after the five days are up), the landowner can file an eviction with their county court.
A hearing will then be scheduled, and the landowner and the squatter will be summoned to appear. Some squatters may fight the eviction in order to draw out the process and gain more time on the property. However, unless they have a good legal defense or a reason to remain on the property, the judge will most likely rule in favor of the landowner.
Even after a successful eviction, a landowner must not try to remove the squatters themselves or force them to leave. Any measures taken to turn off the utilities or change the locks are considered self-eviction methods and they are illegal. These actions can open the landowner up for a lawsuit.
Instead, the sheriff or constable will come to remove the squatter at a set date and time. They are the only ones who are capable of removing a squatter from the property.
If the squatter leaves behind personal property after their eviction, it must be dealt with delicately. If the landowner includes a statement in the eviction notice that any property left on the property will be considered abandoned after 24 hours, the landowner can remove the property after that time and dispose of it.
However, if such a statement was not included, the landowner must provide the squatter with a 10-day notice to claim their property. If it remains unclaimed after this time period, the landowner may dispose of it how they see fit.
Local law enforcement can only help you when it comes to criminal trespassers. Only the sheriff or constable has the jurisdiction and authority to remove a squatter, so you must always call them rather than the local police when dealing with a squatter.
Tips for Protecting Yourself from Squatters in Virginia
- Inspect the property regularly.
- Always pay your property taxes.
- Make sure that the property is secured. Block all entrances, close all windows, and lock every door.
- 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 Code of Virginia § 8.01-236, 237 for more information.