My Tenants Continuously Trespass on the Roof

Last updated on December 16, 2021

You've probably heard the saying that "possession is nine-tenths of the law."

The adage is an old common law concept that means someone who has physical control over a property – either legally or illegally – is in a better position than the person who actually owns the property.

Although the phrase isn't really a law, it is a logical rule that courts have recognized and applied for hundreds of years, especially when it comes to squatters rights and real estate.

What is a squatter?

Squatting – also known by the legal term of "adverse possession" – occurs when one or more people occupy your property without permission and don't pay you rent. Because there is no legally binding rental contract, or even an implied contract if they paid you rent, landlord-tenant law does not apply with squatters.

Because no lease agreement and no rent is being paid, you might think that squatters are easy to get rid of. Unfortunately, the exact opposite can be true. That's because squatters have rights, and landlords need to act quickly before a squatter becomes the legal owner of the property without paying a single penny for it.

Squatting vs. trespassing

It's important to note that there's a difference between squatting and trespassing. Trespassing occurs when a person or group of people temporarily enter a property without permission.

However, trespassers can eventually turn into squatters if they occupy the property for a long enough period of time. When trespassing turns into squatting, the squatter can obtain the right to make an ownership claim and make your property their permanent residence.

Do squatters really have rights?

In most jurisdictions, squatters do not have rights to owner-occupied property because they are trespassing. Believe it or not, squatters really do have rights with rental property or vacant property.

If a squatter continues to use or occupy your property, even if you are unaware that they are there, most cities and states give a squatter the right to be served with an eviction notice and go through the eviction process.

Furthermore, state adverse possession laws give squatters the right to obtain ownership title to your property within a certain period of time, after paying back taxes and other fees associated with the property. But, without paying the owner for the property.

Fortunately, the transfer of property title to a squatter is measured in years rather than months.

In California and Montana, squatters who are in continuous possession of the property and who pay taxes on the property during that time can make an adverse possession claim in 5 years. Many other states such as Georgia, Maine, and Ohio, require a squatter to continually possess the property for 20 years or more before claiming adverse possession and the right to the real property.

Why squatters have rights

Although it might seem counterintuitive, squatters rights were developed over time to discourage property owners from using vigilante justice by 'taking matters into their own hands.'

Generations ago, property owners could use the threat of violence or actual violence to remove people entering or living in the property without permission. Today in some states that's still the case, but it's always better to call the authorities for assistance instead of using force.

In the scheme of things, one of the reasons squatters have rights is to ensure that justice is achieved. Owners acting on their own to remove a squatter could quickly find the situation spiraling out of control, putting the property and the general public at risk.

Squatters rights also outline the obligations of each party to help keep the local real estate market under control and removal of the squatter by the authorities, hopefully peacefully.

How to evict squatters

Landlords who discover people squatting on the property should hire a lawyer instead of trying to evict a squatter on their own. The laws for evicting a squatter vary from state to state, but most jurisdictions follow these general rules to evict squatters:

1. Determine if you have a squatter or trespasser

The first step is to determine if the person or group is squatting or trespassing because the laws for removal are different.

Trespassers are people who enter the property illegally for a short period of time, usually for the purpose of stealing or vandalizing, and may be subject to criminal charges or civil penalties. The local police can normally remove a trespasser if the landlord reports the property has been broken into.

On the other hand, squatters are people who illegally enter a property with the purpose of living there for a long period of time, often with the goal of eventually acquiring the property through adverse possession.

This can occur in vacation homes that are unoccupied for most of the year, or rental property purchased by an investor from a seller who has allowed the property to sit vacant and unattended for a long period of time.

2. Begin the squatter eviction process

In most cases, the process for evicting a squatter is similar to the normal residential eviction process:

1. Review the eviction laws for your state or hire a real estate attorney who specializes in residential evictions to assist with your case.
2. Make sure you have a legal standing to evict, such as having a squatter on your property versus someone who is trespassing.
3. Consult with your eviction attorney to see if it makes good business sense to reason with the squatter and try to convince them to leave, perhaps by offering them a cash incentive, instead of incurring legal fees and court costs to evict the squatter.
4. Serve the squatter with a formal notice of eviction using a third-party such as a process server.
5. File the eviction with the local court if the squatter refuses to leave by the date required in the eviction notice. After paying a filing fee and providing proof to the court clerk that the eviction notice was served properly, the clerk will schedule a hearing date for the eviction.
6. The squatter will also be notified of the hearing by the court through a summons, so neither you nor your attorney will need to confront the squatter.
7. Prepare for the hearing by gathering documents to be used as evidence for evicting the squatter, including when you first discovered the squatter, the estimated length of time the squatter has occupied your property, and proof that the squatter was served with an eviction notice.
8. If the judge rules in your favor, you will have won an unlawful detainer lawsuit and be able to evict the squatter. To physically remove the squatter from your property, you will need to take the court order to the local sheriff or constable and pay a fee from these authorities to enforce your unlawful detainer.
9. Remove any possession left behind by the squatter. In some states, the property owner is required to give the squatter written notice with the date they need to collect their items.
10. Once the squatter and their property have been removed, you will regain possession of your property from the squatter.

With luck, the squatter will willingly leave once they are served with the initial eviction notice. In other cases, 'professional' squatters may intentionally occupy the property until the owner wins an unlawful detainer lawsuit against the squatter.

3. Be aware of adverse possession laws

Adverse possession occurs when a squatter has occupied your property openly, hostilely (meaning without your permission), and continuously for an extended period of time. When a squatter has adverse possession, they are able to claim your property as their own.

In many states, a squatter has to pay property taxes during the time they occupy the property before making an adverse possession claim. The time a squatter must continuously occupy the property before claiming adverse possession also varies from state to state.

According to the legal resource website Nolo.com, these are the times required in years for continuous possession for each state:

State	Years for Continuous Possession
Alabama	10
Alaska	10
Arizona	10
Arkansas	7
California	5
Colorado	18
Connecticut	15
Delaware	20
District of Columbia	15
Florida	7
Georgia	20
Hawaii	20
Idaho	20
Illinois	20
Indiana	10
Iowa	10
Kansas	15
Kentucky	15
Louisiana	30
Maine	20
Maryland	20
Massachusetts	20
Michigan	15
Minnesota	15
Mississippi	10
Missouri	10
Montana	5
Nebraska	10
Nevada	15
New Hampshire	20
New Jersey	30
New Mexico	10
New York	10
North Carolina	20
North Dakota	20
Ohio	21
Oklahoma	15
Oregon	10
Pennsylvania	21
Rhode Island	10
South Carolina	10
South Dakota	20
Tennessee	7
Texas	10
Utah	7
Vermont	15
Virginia	15
Washington	10
West Virginia	10
Wisconsin	20
Wyoming	10

In some states, the length of time a squatter needs to occupy a property is shorter if property taxes are paid, or if a document or deed is obtained.

Where to find squatters rights laws by state

Good resources for learning more about squatters rights law for every state include:

• SparkRental: State-by-State Guide to Squatters Rights
• eForms: Squatter's Rights Laws and Tips for all 50 States
• Nolo.com: State-by-State Rules on Adverse Possession
• AAOA: Squatter's Rights: Guide to State Law & How to Evict

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Source: https://learn.roofstock.com/blog/squatters-rights

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