Squatter’s rights refer to the rights of a squatter, which is someone that is living on property that is not theirs. In some States, squatters have rights as tenants or claims to ownership of a property through “adverse possession.”
Adverse Possession: Squatters attempting to obtain ownership of the property by proving they have lived on the property for a specified period of time.
Holdover Tenants: Individuals that remain on the property after their lease or time on the property has ended. A holdover tenant can be given a notice to quit for non-payment with eviction proceedings to begin after the statutory period.
Unknown Persons: If the owner of the property discovers an unwanted person living on the premises. The squatter will be converted to a tenancy-at-will (month-to-month tenant) and 30 days must be given to evict.
The squatter may claim adverse possession after living on the property for at least 20 years (Del. Code Ann. tit. 10 § 7901).
An individual may claim rights as a squatter if they are roommates, tenants, or occupying property that is abandoned or not used. A squatter has rights to the property until they don’t. Or at least, until the owner finds out. Below are the common rights a person has as a squatter in the United States.
Roommates / Family Members
If the squatter is a roommate or living with family members they will be required to legally remove the tenant by the State’s landlord-tenant laws. This requires, most commonly, the landlord to send a 30-day lease termination letter. If the person remains on the property, they may file a formal eviction.
Tenants
If the tenant decides to holdover the lease the landlord can send them a notice to pay or quit which usually ranges from 3 to 10 days. After the notice to quit period has ended, and the tenant is still on the premises, the landlord may begin the eviction process.
Airbnb Squatters
If an Airbnb tenant has overstayed their vacation the owner can have them removed without going to the court. If the tenant is under 28 days on the property, the landlord should contact Airbnb immediately for assistance. If that does not help then the guest is treated like a transient, not a tenant, and can be evicted as such in accordance with local laws (usually involves calling the police to assist in watching them leave).
Adverse possession is the act of obtaining ownership of a property after occupying it for a specified time period required by the State. It helps if the squatter has paid the property taxes and often can help them get ownership of the property faster.
There are five (5) ways to prove adverse possession and all types must be fulfilled:
Actual Use
Actual use is defined as “having dominion over the property” 1 meaning a person must use the property in the same manner as someone else would. Therefore, using the property for hunting or storage, for example, may not qualify in a residential area 2 . Not every case of actual use is black and white, other factors include “whether a claimant “actually” possessed and used the land at issue will depend on the nature and location of the property, the potential uses of the property, and the kind and degree of use and enjoyment to be expected of the average owner of such property.” 3 Most importantly, the possession of the property must be “substantial and not sporadic” 4 , meaning the property must be the claimant’s main residence during the actual possession period.
Open and Notorious Use
“Means a use that is so apparent that it puts the true owner on notice of the adverse claim” 1 . The usage of property must be out in the open for all neighbors and residents of the area to see. Furthermore, the claimant should use the property so that “the acts of the claimant’s entry onto and possession of the land should, regardless of the basis of occupancy, alert the true owner of his cause of action.” 2
Continuous Use
Continuous use does not mean the continuation of usage of the property but that no 3rd party, including the record owner, has interrupted the claimant’s possession of the property 1 . The term “constant” or “continuation” is not defined, although continuous use is met when the claimant is not interrupted at any time when using the property 2 . For example, continuous use was awarded for seasonal usage of a property in which a hunter was able to claim marshland as adverse possession 3 .
For adjacent land, a similar approach applies as 2 neighboring landowners thought a property line was different for about 100 years. After the new property line was discovered the court deemed that the property was continuously used through the statutory period and therefore adverse possession had successfully taken place 4 .
Exclusive Use
Defined as “exclusive of the true owner entering onto the land and asserting his right to possession” 1 or acting and using the property in such a way it could be only expected of the rightful land owner 2 . If the property has a stream, well, or other natural resources that are for use by any person, this does not constitute exclusive use 3 . Exclusive use also means “the possessor is not sharing the disputed property with the true owner or public at large” 4 .
Hostile Use
Hostile use is defined in 1 of 3 ways depending on the State the property is located.
Bad Faith
It must be expressed that the claimant was fully aware that the property was not theirs and operating in bad faith. For States with a bad faith requirement, such as South Carolina, it has had to be proved in most adverse possession cases 1 .
Good Faith
Good faith means the claimant truly believed they owned the property and did not take possession believing it was owned by someone else. This is most commonly between adjacent property owners and a tract of land is on someone else’s side of the fence. At the same time, the claimant must prove that they had a “reasonable basis for the belief” 1 , meaning some reason to show that they believed to own the property. If it’s found the claimant, at any time, knew the property was not owned by them, the property will return to its rightful owner 2 .
Objective
Most States have an “objective” view of hostile use meaning neither does the claimant have a good or bad faith reason to claim adverse possession 1 . Courts in objective States do not want the laws to “reward the thieves while punishing the person who was merely mistaken.” Simply put, the claimant must act as they have ownership of the property as the true owner, no matter if they actively knew they owned the land 2 .
An example of an objective use case was in Ohio where a landowner sold 2 houses to separate owners 3 . For some reason, 1 of the homes had a driveway that was on the neighbor’s land. Due to the use of the driveway through many years adverse possession was claimed. Even though the previous owner sold the land with the driveway on the other person’s property. The claimant proved objective and hostile use through the statutory period.
Step 1 – Occupy the Property
A claimant seeking adverse possession will need to occupy the property for the statutory limit. This should be an abandoned or otherwise unused property that the claimant is not trespassing in the traditional sense. Most adverse possession cases that are won is when the claimant occupies the property in good faith, meaning, they believed the property was theirs.
Step 2 – Take Possession
If a claimant is taking possession they should put up a fence and have “dominion over the property.” This means to act as if the claimant truly owns the property and to use it for its intention. For example, if it’s land, to build a structure on it and make it their home. The possession must take place on a “constant basis” for the statutory period.
Step 3 – Pay Taxes on the Property
The claimant should do everything they can to act as they are the owner including the payment of property taxes and any other local utilities. To start paying taxes on the property, contact the local tax collector, and find out if the taxes are being paid. In addition, if there are any liens they should be paid, although, if the claimant believes they may not obtain rights to the property they may not want to pay the property taxes and liens.
Step 4 – Find the Owner
When the statutory period has been reached, the claimant should contact the local tax assessor or registry of deeds to find out the owner’s name. This information will be needed when filing a case against them for the property.
Step 5 – File a Lawsuit (sue the owner)
When filing a lawsuit the claimant is going to file a “quiet title” which is a filing in the local property court to decide the rightful owner of a property. It’s recommended to hire an attorney to file in the local court and also prepare a complaint for the purpose of adverse possession.
Common Defenses (adverse possession)
There are 3 defenses to use as a landowner to fight off adverse possession claims:
- Showing that permission was given by the landowner to the claimant 1 .
- Open and notorious possession was not shown. For example, some States require “known visible lines and boundaries” 2 .
- Property is also being used by others. For example, if the property has a soccer field and is used by a 3rd party.
How to Avoid Squatters
- Make a fence around the property.
- Create “No Trespassing” or “Private Property” signs.
- Give immediate permission to anyone using the property. Make sure to get their signature and keep a copy of the permission of use.
How to Evict
Evicting a squatter depends on the type of property.
Squatters on Raw Land – Whether it’s for access or living in a tent, the squatter should be made aware they are trespassing on the property immediately. This can be done by either calling the police, filing a petition for a court order, or giving notice to the squatter.
- If the squatter refuses to leave then a court filing may be made with the Sherriff to physically remove the squatter after a court order is made.
Squatters on Residential Property – If a squatter is living on residential property and is trespassing the police should be contacted immediately. If for any reason the squatter is allowed to stay, the owner should begin eviction proceedings immediately.
