Squatters’ Rights

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The phrase squatters’ rights pertains to a notion that someone who takes possession of, or who fails to leave, a property owned by someone else, can eventually claim that property as his own. The concept follows the arrival of homeless people moving into abandoned buildings and setting up shop. If the property owner shows up years later wishing to put his property to use, he may have a difficult road forcing those people, the “squatters,” to leave. In some states, such a situation may lead to adverse possession. To explore this concept, consider the following squatters’ rights definition.

Definition of Squatters’ Rights

Noun

  1. A concept granting claim to real property to an individual who has openly and continuously occupied it without legal permission for a prescribed number of years.

Origin

1850-1860       Americanism

What are Squatters’ Rights

The concept of squatters’ rights dates back to the Roman Empire, where someone who maintained possession of an item or property, without legal title, could become the lawful owner if the original owner did not show up to take possession within a certain period of time. Napoleonic law carried this practice through Europe and the Netherlands.

In the Americas, colonists brought British law with them, including the concept of squatters’ rights. There was no way for the people venturing out into the land from the coast to know whether someone else had laid claim to a piece of land, assuming it was vacant when they arrived. It was commonplace for families to build a home, clear and till the land, and plant crops, working the land for years before someone, claiming to be the true owner of the land, arrived to take possession.

Preemption Act

When the new federal government was formed, all of the land across the continent was assumed to be owned by the government, unless proper claim had been registered with the land office. In 1841, Congress passed the Preemption Act, which allowed pioneers settling on federal land to purchase the land at a very low price. Settlers were allowed to claim up to 160 acres of land, live on it, develop it, and purchase it for $1.25 per acre (about $29.95 per acre in modern currency).

Squatting in Modern Times

In modern times, squatting is seen as a civil law issue in many countries. U.S. law on this topic can be confusing, as the phrase squatters’ rights does not refer to a list of specific rights given to an individual. In fact, squatting is a colloquial term for occupying a property without the owner’s permission. This casual term now refers to a legal process known as “adverse possession.” Modern laws commonly allow certain rights to people who live in a residence, but does not own it. This is to protect tenants from being thrown out without notice by the landlord.

While it is possible for a squatter to eventually gain legal ownership of a property through the concept of squatters’ rights, it is a very rare occurrence. Gaining ownership would require the squatter to have lived in or on the property for a minimum period of time, as set by state law, during which time, the landlord has made no attempt to have him evicted. If the squatter does not retain possession for the time period designated by the state, the continuity is broken and the time period restarts.

Example of Squatters’ Rights

Bob lived with his mother in her rental home when she passed away. The landlord never contacted Bob, who continued living in the home without paying rent. Throughout that time period, Bob cared for the home and property as if it was his own, making repairs, and installing expensive landscaping. After 15 years had passed, Bob claimed squatters’ rights, asking the court to have the property title transferred to his name.

It is clear Bob has put considerable resources into the upkeep and improvement of the property, all without any request for rent by the landlord. In this example of squatters’ rights, the court would need to ensure Bob has met all of the other requirements of their state’s laws before granting ownership of the property to Bob.

Adverse Possession

Adverse possession refers to a process by which a squatter may eventually gain legal title to the property he is occupying, when certain conditions are met. The legal doctrine of adverse possession discourages the neglect or abandonment of real property by its rightful owner. Such properties often fall into disrepair, and may even become an eyesore and hazard to the communities in which they reside.

Many states have adverse possession laws which specify the conditions that must be met in order for someone to claim legal title of an abandoned property. Among other things, the squatter must have continually occupied the property for a specified amount of time, during which the true owner did not attempt to evict him.

Claiming a property by adverse possession does not only apply to homes and other dwellings. It may also be used to claim a small portion of someone else’s property.

For example:

Bob, who lives in the country where lots are large, and many residents have pets and livestock, builds a fence to hem in his goats. Without realizing he was mistaken about the location of the property line, Bob builds his fence about 10 feet on his neighbor’s side of the property line. The neighbor, whether because he never noticed, or because he didn’t care, never said anything about it to Bob.

Nearly 20 years later, Bob decides to sell his property, and when the title company points out the error, Bob petitions the court to have that small strip of land titled in his name. The court must determine whether Bob’s situation meets all of the legal requirements for adverse possession in their state, before deciding whether to transfer title to Bob.

Such a transfer may require Bob to pay a small amount of money to the neighbor, and there may be other fees or financial considerations. While this falls under squatters’ rights, occupying a portion of a property due to a surveying or other error is also known as accidental adverse possession.

Elements of Adverse Possession

In order to make a successful claim under adverse possession, in a state that recognizes such claims, the adverse party, also known as a “disseisor,” must openly occupy the property, treating as if it is his own, without challenge by the rightful owner, for a specified period of time. The elements of adverse possession that must be proven in a squatters’ rights claim of squatters’ claim include:

Actual Occupation

The adverse party must actually occupy the property, which is not being used by the property owner. Such occupation must be continuous for the minimum period of time, though this does not mean the individual must physically remain on the property every hour of every day. The adverse party must treat the property as his own, taking part in physical acts of maintaining and improving the property.

Open and Notorious Possession

The occupant’s use and possession of the property must be open and notorious, meaning that it must be obvious for all the world to see, so as to give the owner notice that such a claim may be made. Open and notorious possession may also be made by the installation of fencing, clearing or planting the land, raising livestock on the land, installing signs, or by opening/closing gates to areas of the property that the owner would be sure to notice.

Exclusive Possession

The occupant must use the property to the exclusion of the owner and other potential squatters. This means he cannot share occupancy with the legal owner, but must claim it as his own. Two people may claim adverse possession if they both occupy the property, sharing possession, as long as neither is the legal owner. Making physical improvements is evidence of exclusive possession.

Hostile Possession

Hostile possession occurs when the adverse party enters or uses the property without the true owner’s permission. Use of the land by hunters, renters, or other people, without any intent or claim to the property, is not considered hostile possession. Rather, the occupant must oppose the rights of the true owner.

Continuous Use

The adverse party must occupy the property continually for the minimum length of time specified by the state’s statutes, which may range from 5 to 30 years. Occupancy cannot be sporadic or interrupted. Should the occupant vacate the property during that time period, then move back in, the time requirement starts over again.

For example, time requirements by some states that do recognize squatters’ rights, are as follows:

  • Arizona: 2 years
  • California: 5 years
  • Idaho: 5 years
  • Montana: 5 years
  • Utah: 7 years
  • Washington: 7 years
  • Alabama: 10 years
  • Colorado: 18 years
  • Delaware: 20 years
  • Ohio: 21 years
  • New Jersey: 30 years

Other elements that may be required by the court include:

  • Claim of Right – the adverse party truly believes he has a rightful claim to the property.
  • Payment of Property Taxes – payments made by both or either of the parties may be considered by the court. Payment of property taxes by the adverse party is not enough to prove a claim in the absence of occupation of the property.
  • Color of Title – a claim based on a property title that appears to be valid, but is somehow legally defective.

Color of Title

Most states differentiate between a person acting in good faith with a faulty title, and those who claim the land without good faith. The courts are more likely to side with good faith trespassers than those who intend to steal of piece of land they know never belonged to them.

For example:

Farmer Joe truly believes he is purchasing a piece of property, which has a faulty deed. Joe moves his livestock in to the stables, and later discovers the stables lie partially on the neighbor’s property. In this circumstance, Farmer Joe may be able to acquire the small piece of property after a certain time period, assuming he meets other requirements of adverse possession, including paying taxes on it.

Public Outcry over Squatters’ Rights Case

In 1984, an airline pilot, Don Kirlin, and his wife purchased two adjacent lots outside Boulder Colorado, planning to build their dream home, “someday.” The couple, who lived nearby, walked their dogs by their property frequently, and maintained the property, repairing the fences, spraying for weeds, and other upkeep, never seeing any sign that someone else was using their property.

In 2006, more than 22 years later, Judge Richard McLean and his wife, who owned a home on the lot next door, filed a squatters’ rights claim to the couple’s land, they had occupied it for over 20 years. The McLeans claimed to have planted a garden, stacked their firewood, and held outdoor parties on the lot, though the Kirlins never observed such activities, even though they regularly maintained the property.

At trial, the court ruled that the state’s doctrine of adverse possession allows a person to gain full title to a property after using it for a certain length of time without objection from the original owner. The judge stated that the McLeans’ clearly demonstrated a stronger attachment to the land than the Kirlins, and that their near-daily use of the land for 22 years was enough to establish adverse possession. He awarded title to 1/3 of the Kirlins’ lot, valued at over $1 million, to the McLeans. This ruling sparked public outcry, as citizens expressed fear that the same thing could happen to their properties.

Couple Claims Adverse Possession on Adjacent Lot

In the early 1980s, John Altobello and his wife owned a piece of real property in Rockland County, New York. They had used a portion of the adjacent lot as a driveway, and for other purposes, even adding gravel to the lot, installing electric wiring, and building a shed on the property in 1982. In 2010, the true owner of the lot next door, Tolake Corporation, filed a legal claim asking the court to declare it the legal owner of the property.

The Altobellos, having put a great deal of money, time, and effort into improving the strip of property, made a counterclaim of adverse possession. The trial court ruled in favor of the corporate owner of the property in question, and the Altobellos appealed the decision. The appellate court ruled that the couple had met the requirements for adverse possession of the disputed portion of the property, as they had occupied it, and improved and maintained it for over 20 years, meeting the minimum requirement of 10 years. The couple was granted legal title to the disputed portion of the neighboring property in 2011.

Related Legal Terms and Issues

  • Civil Law – The body of law dealing with private matters between individuals and corporations and other entities.
  • Counterclaim – A claim made to offset, or counter, another claim; a retaliatory claim by a defendant against a plaintiff in a civil lawsuit.
  • Defendant – A party against whom a lawsuit has been filed in civil court, or who has been accused of, or charged with, a crime or offense.
  • Intent – A resolve to perform an act for a specific purpose; a resolution to use a particular means to a specific end.
  • Jurisdiction – The legal authority to hear legal cases and make judgments; the geographical region of authority to enforce justice.
  • Plaintiff – A person who brings a legal action against another person or entity, such as in a civil lawsuit, or criminal proceedings.
  • Real Property – Land and property attached or fixed directly to the land, including buildings and structures.