Landlording & Rental Properties

Squatters: What’s Legal, What’s Not, & How to Get Rid of Them

Expertise: Business Management, Personal Finance
43 Articles Written
disheveled living room with broken window fluttering curtains blue apholstered chair

“Squatters’ rights” are two words that invoke ire in landlords, well, everywhere. The very concept may seem silly but is rooted in real law.

Want more articles like this?

Create an account today to get BiggerPocket's best blog articles delivered to your inbox

Sign up for free

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.

Related: A Lesson in Real Estate Safety: My Encounter With a Squatter (Pics Included!)

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.

woman with hand extended out gesturing stop or rejection

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.

Related: It CAN Happen to You: How to Guard Against Dangerous Real Estate Scams & Squatters

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.

tenant-calls

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?

Share below!

 

Scott Royal Smith is a real estate asset protection attorney based in Austin, TX. His firm, Royal Legal Solutions, designs asset protection strategies exclusively for real estate investors. As an investor himself, Scott is sensitive to the needs of real estate investors; as an attorney, he maintains a working knowledge of the best legal strategies available for preventing lawsuits. Connect with Scott here on BiggerPockets or visit his website, www.royallegalsolutions.com, for more information about asset protection for real estate investors. Check out all of Scott’s previous work for BiggerPockets here.

    Scott Smith Attorney from Austin, TX
    Replied 5 months ago
    I also noticed replies weren’t popping into my notifications in the past! I will be checking the comment sections on articles more often in the future, so if you have questions on the article/topic feel free to post them! I will try answer if someone else doesn’t beat me to it!
    Michael Baum from Olympia, Washington
    Replied 5 months ago
    Great article. I have to say that something along these lines is my biggest fear with the vacation rental. Someone overstaying and just not clearing out. In the BP forums, the stickied post is about this very thing. Made the national news.
    Scott Smith Attorney from Austin, TX
    Replied 5 months ago
    This is definitely one of the unfortunate realities of being in the real estate investing business, but it does exist! Fortunately, if you keep your head about you and just take the appropriate steps this can be dealt with. One of the biggest obstacles I have seen with the individuals who own the property is reacting poorly, which can end up being used against them later on. If it happens keep a calm head and get a good team/strategy set up.
    Dev Horn Flipper/Rehabber from Arlington, TX
    Replied 5 months ago
    I believe the default period for adverse possession here in Texas is 10 years, not 30. https://www.superlawyers.com/texas/article/how-long-does-it-take-to-get-adverse-possession-in-texas/68b27db1-d168-4318-aa0c-e07bd01fc39b.html
    Weston Couch Attorney from Austin, Tx
    Replied 5 months ago
    That’s correct, legal eagle eye. Thank you for helpfully bringing this typo to attention. I’m an attorney, and while I didn’t attend law school here in TX, I do work here for Scott and his team. This was a publication typo. So let me please clarify and Scott can yell at me if I’m wrong. JK, he doesn’t yell at us! The default period is ten years. But the reality is, like most legal dramas, it can play out a variety of ways depending on a few factors. I’m guessing our writing team was confined by space and could not list them all. The point is, it isn’t easy. You can’t just trip and fall into adversely possessing a property and an investor who allows it to happen is doing just that–allowing it. Arguably if someone can live continuously on a property meeting certain requirements, the investor’s asleep at the wheel because they have to do it for a period of years.
    John Teachout Rental Property Investor from Concord, GA
    Replied 5 months ago
    I just can’t wrap my head around a situation where I would offer a lease to someone who broke into and was unlawfully living in one of my properties. They would be disqualified on so many levels it’s almost laughable.
    Scott Smith Attorney from Austin, TX
    Replied 5 months ago
    This is definitely a very rare occurrence, but one thing I have learned with real estate investors is that they often think outside of the box! This would never become a standard operating procedure for any business, but some investors find how to mitigate risks and sometimes can even negotiate this type of situation into a paying renter. VERY uncommon, but it can happen.
    Nancy Baldwin
    Replied 2 days ago
    I left my property unattended for 4 hours. Hours. My crazy nephew called locksmith, changed locks and walked in . Called police within hours. They said he has a key and says he lives there. So I have to hire lawyer, go thru eviction. Meanwhile, he vandalized property until thrown out. .