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 West Virginia
- How to Get Rid of Squatters: Judicial eviction (no eviction notice necessary)
- Required Time of Occupation: 10 years of continuous occupation
- Color of Title: Not required, but may help a squatter’s case
- Property Taxes: Not required
Who is Considered a Squatter in West Virginia?
A squatter is someone who chooses to occupy a foreclosed, unoccupied, or abandoned residential building or area of land. They do not rent the property or own it, and they are there without the lawful permission of the owner. Even so, squatting is common in the United States.
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.
- Squatters can be complete strangers or even neighbors who want to obtain title to land.
There are exceptions to this rule:
- If a person beautifies an abandoned or unoccupied property (by removing debris, planting flowers, or making other improvements, etc.), 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 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.
Read more about tenants at will here.
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 West Virginia
A squatter can claim rights to a property after a certain time spent residing there. In West Virginia, it takes 10 years of continuous possession for a squatter to make an adverse possession claim (W. Va. Code § 55-2-1, et seq.). When a squatter claims adverse possession, they can gain legal ownership of the property. At this point, the squatter is no longer considered a criminal trespasser. They have lawful permission to remain 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 – 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 10 years.
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 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 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 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 10 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 10-year timeframe the squatter must reside 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 West Virginia, color of title is not required to make an adverse possession claim. However, having color of title can help a squatter’s case when they 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 West Virginia?
While some states require squatters to pay property taxes to make an adverse possession claim, West Virginia is not one of them. Property taxes are not required to make an adverse possession claim in West Virginia.
How to Get Rid of Squatters in West Virginia
There are no special laws to remove squatters from your property in West Virginia. All landowners who find themselves with a squatting problem should go through the process of a judicial eviction to remove them.
However, there is a provision for disabled landowners in West Virginia. If a landowner is underage, legally incompetent, or imprisoned, they have additional time to protect their land from an adverse possession claim. They have an additional 5 years after their disability is lifted (either they come of age, or released from prison, or regain competency) to regain control of their property.
In all other cases, an eviction starts with an eviction notice. In West Virginia, landowners do not need to give prior notice for nonpayment of rent; however, it is required for holdover tenants and if there is no lease agreement in place. For tenancies that are week-to-week a 7-Day Notice to Quit can be issued, for month-to-month tenancies a 30-Day Notice to Quit shall be issued and for year-to-year tenancies a 90-Day Notice to Quit shall be distributed before filing an eviction suit.
Since there is no prior notice needed for nonpayment of rent, the landowner can go to the county courts and file an eviction at any time with a legal cause. At that point, the squatter and the landowner will be summoned to appear at a hearing, which will be scheduled at the court’s earliest convenience.
The squatter may choose to fight the eviction to gain more time on the property. However, unless the squatter has a good legal defense or a reason to be on the property, the judge will most likely rule in favor of the landowner.
Even after a successful eviction, the landowner must not attempt to remove the squatter themselves. All measures taken to force a squatter to leave (including changing the locks, removing their personal property, or shutting off the utilities) are illegal and open the landowner up to a potential lawsuit.
If the eviction is granted, a judge will issue a Writ of Possession, which is the squatters final notice to vacate. However, depending on the type of hearing, the sheriff may already be scheduled to appear the final day of the court-ordered deadline to remove the tenant. In those instances, no writ of possession is required. If the squatter doesn’t move out by the judicial officer’s deadline, the sheriff will forcibly remove them.
If the squatters leave behind personal property that is worth more than $300, the landowner must wait 30 days before disposing of the property. The landowner must send a written notice and must be posted in a conspicuous place on the property and sent by first-class, certified mail. If the squatter does not claim the property within those 30 days (and/or pay the cost of storage), the landowner may dispose of the property however they see fit.
When dealing with a squatting situation, the sheriff or constable is the only officer that can help. The local police can help remove criminal trespassers, but they do not have the jurisdiction to assist in case of a squatting situation. A landowner in this position should always call the sheriff or constable.
Tips for Protecting Yourself from Squatters in West Virginia
- Inspect the property regularly.
- Pay property taxes in a timley manner.
- 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 West Virginia Code §55-2-1 for more information.