Most ‘Squatters’ Don’t Own Squat

By Jill Jacobson

Tuesday, April 02, 2024

 

Recent ‘squatters’ aren’t true adverse possessors; they’re trespassers and holdover tenants emboldened by progressives’ failure to deter property crime and promote the rule of law.

Reports of “squatters” are popping up across the country. In Atlanta, an estimated 1,200 homes, primarily owned by institutional landlords, are occupied by individuals attempting to establish permanent residency while the owners are away. Worse yet, some on social media are sharing instructions on how to squat on private property, falsely advertising that the law permits the seizure of temporarily unoccupied property. To be sure, it does not.

 

Last month, New York resident Adele Andalaroo entered the home of her deceased parents to find squatters inside. When she called law enforcement, they arrested her for unlawful eviction. Such cases of squatting do not reflect the long-standing legal doctrine of adverse possession (also known as “squatters’ rights”); instead, they represent how people can pervert a legal doctrine when state and local governments refuse to preserve the rule of law and respect for property rights.

 

Adverse possession dates back to Roman law. The doctrine was developed to promote productive land use and discourage owners from abandoning their land in perpetuity. It allows someone other than the owner to take legal title of a property if the adverse possessor occupies, cares for, or improves it for an extended period (most U.S. states require between ten and 30 years). In many states today, this sort of squatter would even be required to pay property taxes in order to make an adverse-possession claim.

 

It is extremely difficult to obtain legal title to someone else’s property by adverse possession; the doctrine certainly does not cover run-of-the-mill trespassing.

 

A classic example goes something like this: Two farmers have lived next to each other for decades. One day, one farmer says to the other, “I just checked my deed, and that strip of land you always farm your tomatoes on is mine, so I am entitled to the land and the veggies too.” According to the doctrine, the true owner had abandoned his land, it had temporarily belonged to no one, and since the neighbor has farmed tomatoes there for decades in good faith, it’s only fair that he be entitled to it.

 

Anyone who occupies a property with permission from the owner — at any time during one’s stay — is not a “squatter,” or potential adverse possessor, in the legal sense. Therefore, holdover tenants who refuse to leave after their lease has ended are not squatters under the law, nor are people who trespass and destroy property: Adverse possessors are required to care for and make improvements to it.

 

Next, to have a valid legal claim to ownership, squatters must have continuously occupied the property for a state-specified period, which ensures that only truly abandoned property is given away. Even in places such as New York City — where squatters are considered lawful tenants after only 30 days — squatters need to have lived there, without the owner’s seeking eviction, for ten years to establish full ownership.

 

The homeowners in today’s “squatting” cases will likely have their right to the exclusive use of their homes restored in court because the squatters are nothing more than trespassers or holdover tenants, the vast majority of whom will not be able to make a successful adverse-possession claim. But the concern for property owners is that many state laws place the burden on them to haul the squatter to court. Often, law enforcement will not remove squatters until judicial proceedings are over.

 

The countrywide problem is not that these squatters will bring successful ownership claims but that they don’t seem to fear the consequences of violating property rights. Their boldness makes sense when neither law enforcement nor the courts are acting swiftly enough to penalize them. Progressive prosecution movements in states such as New York and California have failed to prosecute property crime and have put deterrence on the back burner. These movements have consequences: Some states have effectively neutered law enforcement’s ability to deter property crime, and they expect their residents to deal with the fallout.

 

Laws that prohibit the police from coming to the aid of homeowners are anti-American and arguably unconstitutional under the Fifth Amendment, and they need to be corrected by state and local legislatures.

 

Just last week, Florida governor Ron DeSantis signed a bill that directs law enforcement to remove squatters at the owner’s request, even before the owner has filed an eviction proceeding, so long as he can prove ownership. Other states need to follow suit. The onus should not be on property owners to file a costly judicial proceeding to eject unlawful squatters from their homes, particularly when the chances of a successful adverse-possession claim (that would result in the transfer of title to the squatter) are near zero.

 

The purpose of the adverse-possession doctrine is to prevent abandoned property from remaining dormant and unused for decades; it is not to embolden trespassers and make it difficult for owners to assert their rights.

 

The least that city and state governments can do in the interim is come to the aid of private-property owners — it’s the American way.