How can a squatter get the actual title to the property?

The earlier post about squatter’s rights identifies the behavior that can give a squatter rights to property.  But the legal right to property is only complete when the title is transferred. Usually, a title is transferred when a seller conveys property to a buyer.

A squatter attempting to get title is not buying from the seller; he or she is trying to get property for which no seller seems to exist.  The process for obtaining the title without having the last owner sell it to the buyer is called an “action to quiet title.”  Generally, there are three big steps involved in quieting a title:

1. Searching for anyone who has a claim to all or part of the property, even if the claim is just a right to use the property for some purpose and not to own it.  For example, there might be a neighbor who has an easement that allows him to drive his truck through the property every morning.  This search is a big expensive investigation.  Most state laws about quieting title will require claimants to prove that they have thoroughly hunted in public records (vital and property)  and placed multiple ads in various newspapers as ways of searching for the current property owner.
2. Filing documents in the appropriate court.  In this step, you have to write and submit assorted documents according to all of the rules required in your jurisdiction.  You might be able to find a sample of someone else’s action to quiet title by contacting or going to the court clerk’s office and paying for copies of the documents in that case.  If the clerk’s office will not provide you with a full case file, they might at least give or direct you to a list of things that you have to include in your court filing.  You can also look for sample forms in Justia.   Here is an example from the Philadelphia, Pennsylvania section in Justia Forms: “Fraudulent Conveyance- Quiet Title Packet.”  If you cannot find online forms for your county, you will need to go to a law library and find a book of standard real estate forms.  Any form from a book must be re-designed to match the requirements in your county court’s document rules. Here are the quiet title instructions for Kansas.  Here are the Colorado quiet title instructions. Here is North Dakota’s quiet title law. Here is an example of a Complaint to Quiet Title in Florida. Here is an example of a Complaint to Quiet Title in California.
3. Making your claim.  When you write the court documents in an action to quiet title, you will have to tell about and show the proof that you satisfied all of your state’s requirements for adverse possession and that you also satisfied your state and county requirements for taking action to quiet title.  This is a detailed descriptive writing project, not merely the simple work of completing a form.  If your documents are accepted by the court, you will be assigned a date to appear in court.  In court, you will have to answer questions that the judge asks you.   If the current property owner does not come to court that day, you might have to do an additional procedure asking the judge to give you a “default judgment.”  If the judge decides that you have satisfactorily proved your claim, he or she will give you a document to file with the deeds office.

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.

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[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).