**** 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).