“Squatters’ rights” are two words that invoke ire in landlords, well, everywhere. The very concept may seem silly but is rooted in real law.
But that doesn’t mean squatters can operate with absolute impunity.
What rights do squatters and property owners have? How does the smart investor handle squatters?
Read on to learn the answers and how to prevent a worst case scenario from happening to you.
Squatting or Trespassing?
Squatting and trespassing are two different things. This is why calling the police on squatters can be a dice roll.
If the situation resembles squatting and no other crimes are occurring, the police are likely to tell you (correctly) that your dispute is a civil issue.
Trespassing, on the other hand, is a crime. If you catch someone in the act of trying to breach and make themselves at home in a private property, particularly one with tenants, then you’re actually in a great position.
This is inarguably trespassing. Call the cops, have the intruder removed, and move on with your life.
Squatting, however, is usually used to refer to unwanted tenants who have occupied a property with the intention to stay for the long haul. In addition, “holdover tenants” who have not moved out and not paid rent may also be considered squatters in some cases.
Real Rights Squatters May Have
The idea of squatters’ rights does have its root in genuine law. The principle of adverse possession plays out in statute, and of course real life, a lot.
What’s adverse possession, you ask? That’s the real legal concept that generally is being referred to when folks talk “squatters’ rights.”
Adverse Possession is a rare but very real way a person can come to own a property without paying rent. Its existence has led to plenty of misconceptions about so-called squatters’ rights. But the reality of adverse possession is that in states that permit it, the person usually has to live on the property for a minimum period of time—typically several years.
On top of that, they also need to use the land as a real owner would. Each jurisdiction and judge will have different criteria for evidence of this, but it could include anything from the tenant maintaining the property to paying utilities or even property taxes.
At first brush, it might seem like the law outright condones squatting. But the reality is that these laws exist for a different reason: to prevent waste.
As an investor, you don’t need to lie awake at night worrying about adverse possession. Here’s the real deal: legal adverse possession is ultra rare because there are stringent criteria.
While these vary by jurisdiction, in my fair state of Texas, the squatters would have to occupy the property continuously for 30 years to even be considered for adverse possession. Other states may be kinder, but not by much—it’s not exactly an easy thing to accomplish anywhere.
The kindest by far is California. Investors there may want to research this matter.
On top of that, the squatters have other legal criteria in terms of care for property and would likely need to produce witnesses (not an easy feat if the relationship would’ve had to have began 30 years ago). Again, other states may have additional laws, though none are what we’d call “easy” to satisfy.
For someone to meet adverse possession criteria, you have to be seriously dropping the ball by not checking in on your property and seeking a remedy long before legal claims are reasonable.
How Not to Handle Squatters
No matter what you do, don’t break the law by trying to rid your property of squatters yourself.
Here are some things you cannot do to force the unwanted tenants out:
- Cut the electricity or utilities. It’s illegal, no matter how badly the offending occupants behave.
- Threaten or intimidate them. Also illegal, and a great way to get yourself sued. In my line of work, we go to pretty great lengths to avoid nonsensical litigation.
- Round up some friends and “help yourself.” Mega illegal, likely felonious, and now we’re talkin’ jail time.
While all of these options may be extremely tempting in the face of a frustrating squatter situation, don’t give in to baser instincts and make the problem worse. Here’s how to take the high road.
How to Handle Squatters
Frankly, squatters are best handled like most other legal problems: proactively. It’s far easier to prevent your vacant property from becoming beholden to uninvited guests in the first place than to remove said “guests.”
If you can’t physically check on the vacancy, hire someone to do it. If it’s under property management, you should be able to work this out with the company.
Of course, not everyone is lucky enough to catch squatters ahead of time. If you discover such individuals on your property, there are a few things you can do.
Call the Police and Retain Counsel—Stat.
You might luck out and police can help you remove someone who is simply trespassing. But if you force someone out without the law in your favor, they may be able to sue you later. When in doubt about the law, always contact an attorney familiar with your jurisdiction.
The police may tell you this is a civil matter rather than a criminal one if no other crimes are taking place. If they do, they’re likely correct and you’ll have to seek a civil legal remedy. But if this does happen, you’ll still be glad you called the cops, as now you will have sworn witnesses and a documented report of what happened.
As for your lawyer, get him or her involved if you’re not feeling lucky after the initial call to the cops. If the situation isn’t resolved immediately, you’ll want your attorney looped in ASAP. Follow their advice to the letter.
Get Hip to Your State Laws and Prepare for an Unlawful Detainer Action.
Depending on where you live, you will have a different protocol for which paperwork you need to legally get the person out. These documents could include a Notice of Ejectment for the squatters or an unlawful detainer suit.
If you serve squatters with an eviction notice, they might comply and the world can go on spinning. These are the measures you speak to a lawyer about taking if you aren’t so fortunate.
Call the Cops, Again.
Or call whichever local law enforcement agency removes squatters. Your little “civil matter” becomes a law enforcement matter once you have a signed eviction notice or court order in your hand.
If you win the above civil actions, you can generally pay the local sheriff to remove the individuals from your property. Again, check state law as each jurisdiction has its own protocol and customs. And of course, never take action without an attorney’s advice and approval.
Document, Document, Document.
Keep copies of all communications with your unwanted tenants. Make copies of documents issued to them for your own records. Keep your behavior above reproach, remain professional, and avoid intimidation above all. This will come in handy if you end up in a dispute.
Offer Them a Rental Agreement.
This option may seem wild, but if there’s a situation that isn’t particularly adversarial and the occupants could be tenants (something demonstrated by say, having taken care of the property or holding jobs), you could formalize your arrangement. Then, of course, they would have the full rights of ordinary tenants, but you’d have a legal way to get rid of them if they violate your agreement.
If in your judgment these individuals would make good tenants given the opportunity, you can give them that chance but CYA with a formal lease agreement.
Bottom Line: Squatters Do Have Rights, But Not to Your Rental Properties
Squatters, burdensome as they may be, are humans and deserve some dignity and respect for that fact alone. And remember, just because you hear a horror story or two around squatters’ rights or adverse possession doesn’t make such stories the norm.
Intelligent property management and proactive landlording can save you a world of hurt.
Think of squatters like any other intrusive animal: if you catch the problem early, it’s easier to treat. Because these cases can be such headaches, I think you’ll find maintaining a proactive approach to your property management that prevents squatters (and all their associated drama) is well worth the effort.
Have you encountered squatters in your property? How did you handle it? Have you heard any crazy stories from other owners?