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 Wisconsin
- How to Get Rid of Squatters: Judicial eviction (i.e., serve a Notice for Failure to Pay Rent)
- Required Time of Occupation: 20 years of continuous occupation
- Color of Title: Required—reduces required occupation time to 10 years
- Property Taxes: Required and, with color of title, reduces required occupation time to 7 years
Who is Considered a Squatter in Wisconsin?
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 offense, squatting is usually a civil matter. 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 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 purpose 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 Wisconsin
A squatter can claim rights to a property after a certain time residing there. In Wisconsin, it takes 20 years of continuous occupation for a squatter to make an adverse possession claim (Wis. Stat. Ann. § 8.93.16,25-27). 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 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 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 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 a property is not ‘regular’. The owner is missing one or more of the correct legal documents, registrations, or memorials.
In Wisconsin, a squatter must have some sort of color of title to make an adverse possession claim. Having color of title reduces the required continuous possession time to 10 years (down from the regular 20). If a squatter has color of title and pays property taxes (as we will touch on below), the continuous occupation time is reduced to 7 years instead.
Do Squatters Have to Pay Property Taxes in Wisconsin?
Non-payment of real estate taxes or levies do not bar a squatter’s adverse possession claim in Wisconsin. Squatters occupying the property as required under color of title only need to do so for 10 years without paying taxes while those without color of title must do so for 20 years to be able to acquire the property through adverse possession.
However, when a squatter pays property taxes in addition to having some form of color of title, the required continuous possession time is reduced to 7 years (down from the usual 20 years).
How to Get Rid of Squatters in Wisconsin
Wisconsin does not have any specific laws for getting squatters off of a property. All landowners in Wisconsin who are dealing with a squatting situation must go through a judicial eviction process in order to remove squatters.
However, there is a provision in Wisconsin law for an underage or otherwise disabled landowner. If the landowner is under the age of 18, they have an additional five years to reclaim their property and stop an adverse possession claim. After the disability is lifted (after the landowner comes of age), they have an additional 2 years before an adverse possession claim can be brought against their property.
Otherwise, a landowner faced with a squatting situation should start the eviction process with an eviction notice. In Wisconsin, the most applicable notice to serve to a squatter would be the Notice for Failure to Pay Rent.
There are two ways to write this notice. A landowner may give the squatter five days to pay rent or vacate before filing the eviction; this notice must include an amount that the squatter must pay to remain on the property. The other option is a 14-day notice to vacate without the option to pay past-due rent.
If no action is taken at the end of this time period (if the squatter doesn’t pay or doesn’t move), the landowner can file an eviction with the county courts. From here, a hearing will be scheduled and both the squatter and the landowner will be summoned to attend.
A squatter may choose to fight the eviction in order to gain more time on the property, but unless they have 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 take any measures to force the squatter to leave. Turning off the utilities and/or changing the locks are considered self-eviction procedures and are illegal. This can open the landowner up to a lawsuit.
Only the sheriff or constable is able to remove a squatter from the property following an eviction. This will be done at a scheduled time and date.
If the squatter leaves behind any personal property following the eviction, the landowner must store the property in a safe place and notify the squatter within ten days. From the date of the notice, they have 30 days to reclaim their property. If they do not claim the property after 30 days, the landowner can dispose of it as they see fit.
Only the sheriff or constable can remove squatters. The local law enforcement does not have the jurisdiction to deal with squatters. Local police can remove criminal trespassers, but the sheriff must be called for all squatting situations.
Tips for Protecting Yourself from Squatters in Wisconsin
- 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.