If a place seems abandoned are you legally obligated to get permission to be there? If you are only trying to stay warm and dry one time, is it illegal to go onto private property for shelter?

**** 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. ****

Going onto somebody’s property without permission is trespassing, one of the distinct actions that is a civil wrong as well as a crime. It only has to happen once to be illegal.

As a civil offense, trespass is negligently or intentionally entering someone else’s property or even having your possessions on somebody else’s property without permission.[i] Homeless people are not likely to be sued in civil court for trespass because all that the property owner could get from the suit would be money, which homeless people generally do not have, and maybe a court order saying that the trespasser is not allowed to go on the property again.

The only practical use for the civil court order would be to present it as proof in a criminal case of defiant trespass which is trespass made worse because the trespasser ignored a “do not enter” warning.[ii] Since that warning could just be a sign or a fence or a simple statement from the property owner, rather than a court order, there really is no reason for anyone to bring a civil trespass claim against a homeless person.

Regular criminal trespass, as opposed to the kind that defies a warning, can be charged when someone merely “enters or surreptitiously remains in any building or occupied structure”[iii] without permission. Both of the criminal forms of trespass can result in punishment to the trespasser, at least the punishment of eviction. Still, there are usually defenses for every crime.

In trespass crimes, unlike so many others, there is a defense that is favorable to the homeless: when a privately owned building has been abandoned, the Model Penal Code says that being in it without permission is not trespassing.[iv] On the other hand, not every state’s trespassing law includes this abandoned building exception.

RESEARCH TIP:
To defend a trespassing charge on the grounds that the building was deserted or abandoned, it is necessary to look at similar cases in the state where the charge was brought. Those cases will demonstrate important legal requirements such as how long an owner has to have been absent for a place to be considered abandoned in that state. They will also identify any clues that should have informed an intruder whether or not the place was abandoned. Summaries of cases are published in case digest (i.e. indexes to cases) published by West Publishing, the primary publisher of U.S. case law. Cases about trespassing in abandoned building are listed under “key 79” within the topic of Trespass.

The exception almost never applies to government-owned buildings.[v] Additionally, governments have an arsenal of reasons, beyond trespass, to keep people out of their buildings. They can use their condemned building codes or their health or fire codes. There’s always a criminal mischief or loitering charge that can apply to people who won’t follow police orders to leave a place. There might even be a specific statute or ordinance declaring it illegal to occupy a city, county, or state owned empty building.

Some case examples show how homeless squatters and municipalities have used the legal system to dispute the squatters’ occupation of abandoned buildings. In New York, the city evicted a group of homeless people who had not only occupied an unused and decrepit city building for nearly six months, but had actually improved the building and made it usable by installing new plumbing and electrical systems all by themselves. The court upheld the eviction noting that the plumbing and electrical work were not necessarily up to code and declaring that the squatters simply had no legal right to occupy those premises.[vi]

In the town of Brookhaven Long Island, homeless squatters in a building complex responded to an immediate forced eviction by asserting that their due process[vii] and fair housing[viii] rights had been violated. The due process claim was that they were entitled to notice and a hearing before being evicted. The fair housing claim was that they were unfairly targeted because of being Latino. The federal court held that since the squatters did not have a legal right to be on the property, they were not entitled to due process. However, since the evictions truly did target only Latinos who would suffer irreparable injury by being put out, the squatters were allowed to pursue their fair housing claim.[ix]

There’s a charming historical case out of Boston in which the city ordered a squatter to vacate one of its buildings. When he wouldn’t leave, the city ordered him to pay rent. He refused to pay the rent, so the city took him to court. The court found that since the squatter’s occupancy was illegal, he wasn’t obligated to pay any rent.[x]


[i] 87 CJS “Trespass”.

[ii] Model Penal Code §221.2(2) (1962), defiant trespass happens when “knowing that he is not licensed or privileged to do so, [someone] enters or remains in any place as to which notice against trespass is given by: (a) actual communication to the actor; or (b) posting in a manner prescribed by law or reasonably likely to come to the attention of intruders; or (c) fencing or other enclosure manifestly designed to exclude intruders.”

[iii] Model Penal Code §221.2(1) (1962).

[iv] Model Penal Code §221.2(3) (1962), “It is an affirmative defense to prosecution under this section that a building …was not occupied.”

[v] Mary K. Cunningham et al., De Facto Shelters: Homeless Living in Vacant Public Housing Units, (Urban Institute 2005). This is a research study about homeless squatters in Chicago and serves as a good example of how public authorities deal with people living in abandoned public buildings. Available at http://www.urban.org/uploadedPDF/411144_defacto_shelters.pdf.

[vi] Paulino v. Wright, 620 N.Y.S.2d. 363 (N.Y. App. Div. 1994).

[vii] U.S. Const. amend. XIV.

[viii] 42 U.S.C. §3601 et seq. (2007). “The Fair Housing Act” and the “Fair Housing Amendments Act” are combined in this part of the United States Code.

[ix] Valdez v. Brookhaven 05-CV-4323 (E.D.N.Y. 2005) also at 2005 WL 3454708.

[x] O’Brien v. Ball, 119 Mass. 28 (Mass. 1875).

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).