Introduction to the Homeless Law Blog

Every day, throughout the day, the homeless have to worry about the law.  Being without a home is not in itself illegal, but the routines and behavior that go with it often are.  Sleeping and grooming in public might also be trespassing, open lewdness, nuisance, loitering, or vagrancy.  Rummaging for food might be theft.  Just walking into a business might offend or frighten people enough that the police are called to remove a homeless patron.  Once arrested, the homeless often do not have proof of identification and cannot afford attorneys.

Even more than the risk of being arrested, the homeless have to concern themselves with when and how the law will protect them. They are victims of attack, unpaid day workers, parties to contracts… citizens with a panoply of needs.  Perhaps they are hassled or have had their possessions taken or damaged.  Maybe they are given spoiled food.  They may want to ask for help from the police or government agencies, but requests are met with demands for personal information.  People who don’t have addresses may be afraid of bad results if they don’t have an answer for every line on a form.

People with these kinds of vulnerability are clearly in need of information.  If they know their rights, they understand what to ask for.  If they can describe a problem in the language of legal and societal institutions, they might get better help.  If they realize how the law relates to them, they feel justified in their claims and validated as humans. Unable to pay for lawyers, the homeless often go to the internet for information.  That is why this blog is here, to help homeless people figure out how to do legal research that will enable them to figure out answers to their legal questions.  Click on one of the categories on the side to see the homeless law research questions.

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What is “squatting”? Is there such a thing as “squatter’s rights”?

**** The information written here is not legal advice and the author of this blog is not your lawyer.  These posts merely contain ideas to help you plan and organize your legal research and identify potentially helpful sources of law. ****

“Squatting” is an old casual word for occupying a place that legally belongs to someone else when that owner hasn’t given permission for the occupation. “Squatter’s rights” is an assertion that someone is entitled to own land after he’s been squatting there. Although “squatter’s rights” is an old concept, it is certainly not casual. The legal name for squatter’s rights is “adverse possession.”

To see the research process for getting actual title to the property, see this post.

The doctrine of adverse possession is a venerable legal standard by which a possessor of land can become the owner of that land without buying it.  Generally, it is only possible to get control of privately-owned land by adverse possession; government property like abandoned public housing units, plots of land in alleys, empty schools, and other government-owned land and buildings cannot be taken-over by individuals.[i]  If the property is owned by individuals, a non-government organization, or a private business, there are several things that a land possessor has to accomplish and prove in order to become the legal owner.  Until all of these things are accomplished, the possessor, i.e., the squatter, is considered an illegal trespasser.

The possessor first has to possess the land in a way that is open. It can’t be hidden or secret; he can’t just put his own subtle markers around the perimeter and later claim that those markers denoted his possession.  The test that courts apply to decide whether possession has been “open” is to ask whether the possession is so visible that “a reasonably prudent owner in the exercise of ordinary care would have discovered that someone was asserting a claim to the property adverse to his.”[ii]     

Next, in order to qualify for adverse possession, the possession must be continuous.  If the possessor only spends the one day a month there or goes there just to pick apples sometimes, it isn’t continuous.[iii]  If the owner has the possessor jailed for trespassing, the possession is also not continuous because the time spent in jail breaks the continuation of time that the possessor expected to spend on the land.  For how long does this continuous possession have to go on before title is granted?  That is determined differently in each state.  Generally, it ranges between five and twenty-one years.[iv] 

Third, the possession must be exclusive.  This means that the possessor and the owner are not sharing the property.  It does not necessarily mean that the possessor has to be the only one on the property.[v]  Multiple possessors could eventually become co-owners if they share the property in the same way for the same amount of time.

Consider the example of a homeless person who consistently stays on a particular piece of land.  Maybe there are other people, homeless or not, who join him by staying on the land for weeks or months.  The owner, however, almost never occupies the land during the years that this homeless person occupies it.  This homeless person will have satisfied the legal requirement that his possession of the land was exclusive.

If the story is changed slightly so that two homeless people, not members of the same family, occupy the property together for the legal number of years needed for adverse possession, they both get to claim exclusive possession.  Even though neither one was alone on the property, those two people together controlled the property exclusively, without the owner’s involvement.

Fourth, the possession must be adverse.  This means that it truly has to be without the owner’s permission.  Sometimes, court cases use the word “hostile” to show that the possessor’s use of the property is against the owner’s interests.  This criterion doesn’t require that the possessor be mean to the owner, it only requires that his reason for using the property is contrary to the owner’s right to have his land left alone.[vi]  

When there are multiple owners and one of them has given someone permission to be on the property, the possession is no longer considered adverse and the possessor cannot hope to gain ownership of the property under the doctrine of adverse possession.  Permission does not always come in the form of a clear statement like, “sure, it’s okay with me if you stay here.”  It may be that the owner knows that the possessor is there, but does not interfere with the possession.[vii] 

In sum, it is possible for squatters to get a legal claim to the property where they squat, but only if it is done openly in a clear obvious way, if the squatting lasts for the number of years required in that state, if the squatter had pretty much exclusive possession of the property for all of those years, and if the squatting was definitely against the owner’s interests in the property.  To see the research process for getting actual title to the property, see this post.

RESEARCH TIP: To find the adverse possession laws in your state, try one of these strategies:
1. Look in a West case Digest for your state or region using the topic “Adverse Possession” and Key Number 13. 2. Look in the volume of your state’s statutory code covering “property.” If there isn’t a volume or major section on that topic, look for “adverse possession” in the alphabetical index to the code. It might be listed under “A” or it might be listed as a sub-topic within “property” or “real property” or “real estate.” Try navigating through the online version of your state code.  3. Look in a library catalog for a general book about property law in your state.

[i] R.P. Davis, Acquisition by Adverse Possession or Use of Public Property Held By Municipal Corporation or Other Governmental Unit Otherwise Than for Streets, Alleys, Parks, or Common, 55 A.L.R. 2d. 554 (1957 & 2006). To read about adverse possession of streets and alleys, see 11 McQuillin on Municipal Corporations §30.179 (1991 & Supp. 2006).

[ii] John F. Major, Acquisition of Title to Property by Adverse Possession, 39 Am. Jur. Proof of Facts 2d 261, §8 (2006).

[iii] “Acts which are consistent with sporadic trespass are insufficient to apprise a reasonably diligent owner of any adverse claim” Pierz v. Gorski, 276 N.W. 2d 352, 355 (Wis. Ct. App. 1979); “An annual entry upon another man’s lands, to cut timber, to feed cattle, to hunt or fish, can never give title, and the cultivation of a truck-patch during the summer as incidental to the other pursuits, does not redeem such entries from the character of occasional trespasses.” Wheeler v. Winn, 53 Pa. 122, 131 (Pa. 1866); “(1) mowing and maintaining the property each and every summer; (2) storing their lake equipment on the property each and every winter; and (3) allowing their children and grandchildren to play on the property… [are] best described as occasional and sporadic, failing to satisfy the elements of adverse possession.” Standard v. Urban, 453 N.W.2d. 733, 735 (Minn. Ct. App. 1990).

[iv] Examples: District of Columbia – 15 years, D.C. Code § 16-1113 (LexisNexis 2006); Florida – 7 years, Fl. Stat. Ann. § 95.16 (West 2006); Minnesota – 15 years, Minn. Stat. Ann. § 541.02 (West 2005); Nevada – 5 years, Nev. Rev. Stat. Ann. §§ 11.070, 11.110, 11.150 (West 2006); Ohio – 21 years, Ohio Rev. Code Ann. § 2305.04 (LexisNexis 2006); Washington – 7 years, Wash. Rev. Code Ann. § 7.28.050 (LexisNexis 2007).

[v] Bryant v. Palmer Coking Coal Co., 936 P.2d 1163 (Wash. Ct. App. 1997); Roche v. Town of Fairfield, 442 A.2d 911 (Conn. 1982).

[vi] Griffin v. Brian Dev., 938 So.2d 337 (Miss. Ct. App. 2006); Schuler v. Oldervik, 143 P.2d 1197 (Colo. Ct. App. 2006); Wood v. Bell, 902 A.2d 843 (Me. 2006).

[vii] Jonathan M. Purver, 2 C.J.S. Adverse Possession § 80 (2003).

Can property owners interrupt your sleep or otherwise make you uncomfortable simply because you are not paying rent?

**** The information written here is not legal advice and the author of this blog is not your lawyer.  These posts merely contain ideas to help you plan and organize your legal research and identify potentially helpful sources of law. ****

 

The law does not allow anyone to be tormented in exchange for the simple opportunity to sleep indoors.

Although this is a problem that can be efficiently resolved by leaving the place, the question deserves legal analysis.  If someone were invited to stay in a place and then got berated or hassled or physically bothered by the host, he could legitimately ask the police to charge that host with criminal harassment.

The Model Penal Code declares that harassment is a petty misdemeanor that happens when someone: “insults, taunts or challenges another in a manner likely to provoke violent or disorderly response; …makes repeated communications anonymously or at extremely inconvenient hours, or in offensively coarse language; or… subjects another to an offensive touching; or … engages in any other course of alarming conduct serving no legitimate purpose of the actor.”[i] 

         
State crimes codes elaborate on the Model Penal Code’s definition. In New Jersey, harassment includes behavior that “subjects another to striking, kicking, shoving, or other offensive touching, or threatens to do so…or any other course of alarming conduct or of repeatedly committed acts with purpose to alarm or seriously annoy such other person.” [ii]  In Connecticut, harassing behavior is included in the crime of disorderly conduct when someone “by offensive or disorderly conduct, annoys or interferes with another person”. [iii]  
In Maryland, harassment occurs when someone, “maliciously engage[s] in a course of conduct that alarms or seriously annoys the other…with the intent to harass, alarm, or annoy the other; after receiving a reasonable warning or request to stop by or on behalf of the other; and without a legal purpose.” [iv] In New Mexico, “Harassment consists of knowingly pursuing a pattern of conduct that is intended to annoy, seriously alarm or terrorize another person and that serves no lawful purpose. The conduct must be such that it would cause a reasonable person to suffer substantial emotional distress.” [v] 
These are just a few representative examples to show that generally bothersome behavior truly can be punishable by law. The states follow the Model Penal Code’s classification of harassment as a minor crime, likely to result in a fine or community service, but not jail time.   
If the taunting or annoying behavior makes the victim afraid of getting hurt, both the crime and the punishment for it would become more serious. Then, the crime would be assault [vi] and the punishment could involve jail time. Examples of the kind of harassment that might count as assault could include showing a weapon or raising fists, making verbal threats, having a group of people collectively mock the homeless visitor, and using a menacing tone to demand that the homeless visitor do something. 
Victims of harassment or assault are not limited to the criminal justice system for help. They can sue their tormentors for money damages in civil court. The claims might include assault, battery, intentional infliction of emotional distress, or harassment. See the posts about court for more details about making a civil case.
 


[i]Model Penal Code §250.4 (1962).

[ii] N.J. Stat. Ann. §2C:33-4 (West 2007).

[iii] Conn. Gen. Stat. §53a-182(2) (2006).

[iv] Md. Code Ann., Crim. Law §3-803(a) (West 2006).

[v] N.M. Stat. Ann. §30-3A-2(a) (LexisNexis 2007).

[vi] Model Penal Code §211.1(1)(c) (1962), defines simple assault to include: “attempts by physical menace to put another in fear of imminent serious bodily injury.”

Do you have a legal right to live in habitable conditions if you are on someone’s property with permission?

**** The information written here is not legal advice and the author of this blog is not your lawyer.  These posts merely contain ideas to help you plan and organize your legal research and identify potentially helpful sources of law. ****

In group housing facilities, such as shelters and apartment buildings, there is a legally enforceable expectation of habitability. That legal obligation is connected to local and county health department ordinances and the law about leases. If a landlord violates the health code by having a water heater that leaks carbon monoxide, for example, the health department can declare that water heater unusable. But that does not give the resident anything more than a lack of hot water.      
The resident’s legal rights come in a warranty– the implied warranty of habitability. This implied warranty is identified in the statutes of some states and in the caselaw of other states.[i]    

 
The point of the warranty is that a rent-paying tenant is entitled to get a livable facility in exchange for his money. When the landlord does not maintain the building’s basic systems: plumbing, heating, electricity and other things that are under the landlord’s control such as infestations of hallways and other common areas, then the law says that the tenant is not getting what he is supposed to get out of the lease.    

  
A visitor does not have a lease agreement with a property owner. Even though the earlier part of this chapter showed that the relationship between a homeless visitor and a homeowner could be interpreted according to contract law, it also demonstrated that unlike an ongoing lease type of contract, the arrangement between someone staying thanks to the owner’s courtesy, possibly in exchange for some chores, is not a contractual right to prolonged housing. The owner’s motivation in allowing someone to stay at his place as a favor is basically a charitable one. The owner’s motivation in renting spaces to tenants, by way of leases, is the standard business motivation-to make money.       

Having to satisfy all of the codes– fire codes, health codes, tax codes, electrical codes[ii] is a legal responsibility that comes with being in the business of providing housing. Shelters are in the non-profit business of housing people which is why they have to follow the codes.      

Homeowners who do not rent out space do not necessarily keep their places in top condition. They may have learned to live with a faulty toilet or a failing furnace or flickering lights. They may not even live at the place where they agree to allow a homeless person to stay. Whether or not they live there, they have not established a contractual obligation to maintain the property in a particular condition if they have not entered into a lease with the visitor or they do not have standard legal obligations connected with being in the business of renting property. 

     
A homeless person living in a place without paying for it can get out of the sickening, dangerous, or injurious conditions of the building by simply leaving; it is not as if he is walking away from money that was paid in a down payment or rent. Being able to simply walk away without violating a deal or owing anything is even more proof that he does not have an enforceable contract for habitable living conditions. There are certainly many variations on the relationship between property owner and homeless visitor that can create a contractual obligation of habitability, but generally the obligation will not arise.     

There is, however, another possible legal avenue by which a homeless visitor might be able to take action against unsafe or unhealthy housing conditions if he has suffered harm from those conditions. This alternative legal claim would be negligence. Property owners have long been legally responsible for preventing visitors from being injured or sickened on their property. This area of negligence is specifically known as “premises liability.”     
The law of premises liability comes from cases more than statutes or regulations, and it varies according to the history of cases in every state. Basically, it means that when someone is injured on another person’s property as a result of the property owner’s failure to repair or warn about a danger on the property, the owner has to pay damages to the injured person.    

  
Warnings are not always a legal way of avoiding responsibility for someone’s injury on property. Nobody can get away with saying, “it’s not my fault he got burned in a fire; I told him the wiring was old.” On the other hand, sometimes just warning visitors against the danger can satisfy the owner’s legal duty. Everyone has seen electrified fences with signs that say “high voltage.” The fence owner with such signs would probably not ordinarily be liable for electrocuting someone who ignored those signs and touched the fence.    
In some places, trespassers do not have a legal right to sue for injuries caused by dangerous property. In those jurisdictions, courts have decided that property owners cannot be expected to protect people who go on property without their knowledge or at least without permission. Property owners definitely cannot purposely cause something to harm trespassers.[iii] And, in most places, a property owner who knows his property well enough to be able to predict that something about it could cause sickness or injuries, (examples: broken sink could cut someone, bad water heater could lead to scalding, faulty furnace could cause carbon monoxide poisoning…) has a duty to prevent those problems from hurting people who are allowed there as well as trespassers.[iv]   

   
Negligence has been defined elsewhere in this blog. Here is how it applies to a premises liability problem: Think about a homeless person living in someone’s basement. The house’s main sewer pipe is under the floor of this basement. Every time there’s a heavy rain, the basement becomes flooded with sewage. The homeowner knows about this sewage flooding, but doesn’t know exactly what’s wrong with the sewage pipe. The homeless person develops a terrible bacterial infection from living in the basement that has repeatedly had these floods.     
Since the owner knew that there had repeatedly been raw sewage in his basement and everyone knows that raw sewage can be sickening, he had a duty to prevent the homeless visitor from getting sick from it. He breached that duty by either not cleaning his basement or not preventing new flooding. Since he breached his duty and harm was caused as a result of that breach, he can be found negligent. Being guilty of negligence will make him liable for the sick visitor’s medical expenses. He might also be ordered to pay punitive damages. In other words, the court might say that he has to additional money to the visitor as a way of being further punished for causing that visitor to get sick.


[i] Richard. A. Lord, Williston on Contracts §48:11 (4th ed. 1990 & Supp. 2006).

[ii] These health and safety codes are usually published in the county or local ordinances. In Justia, http://www.justia.com/us-states/ click on your state’s name and then, within the state resources page, look for the link to “city websites and city codes.”

[iii] The famous case conveying this legal prohibition involved a property owner who set-up a spring-loaded gun that would shoot as soon as someone opened the door to bedroom in his old farm house. He arranged the gun that way because trespassers had been entering his old farm house, while he was at his main house, and stealing things from it. He expected that the gun would serve to punish the next trespasser and deter any others who might have come. Katko v. Briney, 183 N.W. 2d. 657 (Iowa 1971). Similar cases involving spring guns had been on the books for years, often as criminal cases against the property owners. See, Homicide-Death of Trespasser by Spring Gun in Unoccupied House, 31 Yale L.J. 562 (1922).

[iv] To see a thorough comparison of relevant cases from throughout the country, go to Vitauts M. Gulbis, Modern Status of Rules Conditioning Landowner’s Liability Upon Status of Injured Party as Invitee, Licensee, or Trespasser, 22 A.L.R 4th 294 (1983 & Supp. 2006).

Can property owners make you leave whenever they want to?

**** The information written here is not legal advice and the author of this blog is not your lawyer.  These posts merely contain ideas to help you plan and organize your legal research and identify potentially helpful sources of law. ****

 

Depending on the agreement between the homeowner and the homeless visitor and the way they have mutually come to their expectations and behaviors regarding the living space, the homeowner will usually have legal justification for abruptly ending a housing relationship with a non-paying tenant.[i]

The word “usually” appears here, because of that huge range of possibilities about their expectations and behaviors. It is certainly possible for a court to find that an actual landlord-tenant relationship has formed between a homeowner and a homeless visitor in which case the homeless visitor would be entitled to formal eviction proceedings.[ii]     

Even when a visitor has fully upheld his promises and the homeowner has not asked for additional obligations from the visitor, a homeowner can legally modify the contract by saying that as of a particular day, and it can be the same day because no statutes provide extra time for guests to be warned, he will no longer house the homeless person. In other words, he will not uphold his end of the bargain anymore. He is freeing the homeless person from his obligations. Not only that, he is informing the homeless person that even if he does honor his obligations, the homeowner will no longer honor his.

Once the homeowner has told him to leave, a homeless person will not succeed in a court case declaring that the homeowner breached the contract by not allowing him to stay through the winter even though he kept shoveling the snow. He will not be able to force the homeowner to continue housing him.  A court would likely find that as of the point that the homeowner decided to no longer provide housing, the visitor no longer had any obligation to shovel the snow.

In other words, shoveling snow no longer had the effect of being part of the housing deal. If the homeless person continued to do it without the homeowner’s promise to continue providing housing then the homeless person was simply doing the homeowner a favor, not ensuring that he would continue to get his housing.


[i]Jackson v. U.S. 357 A.2d 409 (D.C. 1976) (a girlfriend’s right to throw out her boyfriend was upheld by a court); Young v. D.C.752 A.2d 138 (D.C. 2000) (a property owner was allowed to have his son’s homeless unemployed friend ousted from an apartment even though he made token payments in exchange for the opportunity to stay there).

[ii]DeLay v. Douglas 164 S.W.2d 154 (Mo. Ct. App. 1942) (a tenant farmer who planted and tended wheat and barley crops in a year when he had no lease was entitled to keep half of the crop just as he had in the years when there was a lease between him and the landowner); Valdez v. Brookhaven 05-CV-4323 (E.D.N.Y. 2005) (though a lease was found not to exist, the court did analyze due process rights connected with eviction.)