In the Oklahoma Land Rush of 1889 settlers raced to newly opened acreage in the territory to claim plots of land with flags—and often, guns. Although we no longer obtain land with firearms like they did in the Wild West, you can still, in some cases, legally lay claim to someone else’s property via the concept of squatter’s rights (a.k.a. adverse possession). Likewise, in some cases, someone else can lay claim to your property.
Use it or lose it
“Squatter’s rights are indeed a real thing, although it happens very rarely these days,” says attorney James Goodnow of the Lamber-Goodnow injury law team at Fennemore Craig in Phoenix. “As defined by state statute, a person can rightly claim land under some circumstances, and it usually turns on abandonment and actual practical use. This type of adverse possession requires continuous and uninterrupted use of land that is ‘open and notorious’ for a certain period.”
Say, for instance, that Mr. Squatter has been using Mrs. Homeowner’s property as his driveway. It’s a piece of land the she herself doesn’t use, and unless Mrs. Homeowner takes legal steps to keep him from doing so, Mr. Squatter may continue to utilize that stretch of property for a period of time until it becomes his own. In Goodnow’s state of Arizona, that time frame is 10 years. In some states, it’s much longer.
“In Pennsylvania—though it would require a good bit of ‘squatting’—one can acquire title to land with 21 years of open, adverse, notorious, hostile, and exclusive possession of the land,” says attorney Brian C. Caffrey of the Scaringi and Scaringi law firm in Harrisburg. In other words, the “squatter” who uses land he doesn’t own for at least 21 years can claim possession of that property.
However, the elements Caffrey mentions must coexist in order for someone to acquire the title by squatting. Specifically, for the squatter to take possession, his use of the land must meet the following requirements:
- Actual. Actual physical occupation of the land with the intent to keep it for one’s own use is required. Planting crops and cutting timber are two examples of actual possession. In some states, actual possession is defined by statute.
- Open and notorious. Occupation of the land cannot be in secret but must be open for the world to see, as if the squatter were a true owner. Caring for the property—or actually residing on it—must be generally witnessed and acknowledged by others.
- Exclusive. Exclusive possession means sole physical occupancy. Evidence of exclusive possession can be found in physical improvement to the property, such as erecting fences or building a home.
- Hostile. Hostile (adverse) doesn’t necessarily means there is fighting over the title. It simply implies that the squatter occupies the land in opposition to the property owner’s rights.
- Continuous. Adverse possession must be continuous for the full statutory period (e.g., 10 years in Arizona; 21 years in Pennsylvania).
Protecting your property from squatters
“As a landowner, the best way to protect yourself is to visit your property regularly. If a squatter is illegally inhabiting your land, contact the authorities as this is actually a crime of trespassing,” advises Goodnow.
“If you’re the property owner, you must never allow such use to persist,” says Caffrey. “If the squatter won’t move after written warning, then you must take action to evict him/her or risk diminution in the value of your real estate or, in extreme cases, loss of your title to the real estate.”
Don’t rely on time to solve a squatter problem. “You can’t close your eyes and hope that, after the passage of enough time, the problem will go away,” cautions Caffrey. “In fact, the opposite could result. Having a ‘cloud’ on your title could also affect your ability to borrow money against the property (e.g., obtaining a home equity loan or refinancing your mortgage) or to sell it.”
Should you squat your way to acquiring property?
“I would never advise a would-be squatter to use squatting as a means of acquiring title to real estate, primarily because of its confrontational and uncertain nature,” asserts Caffrey. “If ownership of the land is disputed, you’d be much better off negotiating a purchase of the land or a right-of-way.”
Goodnow agrees. “I would never recommend trespassing as a way to gain title by adverse possession,” he says. “The times you see this occur really only happen in rare circumstances on certain pieces of land where boundaries have not been well defined.”
Know your boundaries
Establishing titles and boundaries has come a long way since the old days, but while laws exist to protect those who own as well as those who squat, the complexities involved usually end up requiring legal intervention. So keep an eye on your property and don’t try to resolve squatter matters on your own.
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