Squatters' Rights: Difference Between Adverse Possession, Trespassing

Breaking lock
MortenMyksvoll/Flickr

By Christine DiGangi

Technically, you could walk into a home that isn't yours and declare ownership without paying a cent. There are a lot more details that would need to play out in just the right way, but theoretically, it's possible through a process called adverse possession. It's the concept most people are referring to when they talk about "squatters' rights," which generally involves someone sitting on a property and using it as their own with the belief that staying there long enough gives them the right to be there.

It can take years -- sometimes decades -- to obtain property through adverse possession, in addition to the other requirements the squatter needs to meet. Squatter, by the way, is not a legal term. "As far as the popular notion of squatters' rights -- people going into a home and laying down stakes -- that's largely a myth," said Garrett Ham, a real estate attorney in Arkansas. "Those kind of rights generally don't exist."

For example, a man in Ohio broke into a family's home, changed the locks and decided it was his. Yeah, you can't just do that, which is why he was arrested for breaking and entering.

Claiming What Isn't Yours: Adverse possession was designed to deal with disputes over property boundaries, and the law establishes a statute of limitations after which an owner cannot argue that someone is wrongfully claiming his or her property. For example: In Arkansas, a squatter must continuously and openly claim to own a home, in which he or she has no permission to live, for seven years to take a property through adverse possession.

"You can't be hiding, you can't be sneaking into the place and no one knows you're there," said Yelena Gurevich, managing attorney at the Consumer Action Law Group of Panzarella Gurevich and Rode. She's in California, where adverse possession can only be claimed after 10 years of continuous habitation.

"The only time I really see the word 'squatters' is if you're looking at abandoned buildings and you see runaways and homeless people occupy those places," Gurevich said. "They're technically trespassing." She said if they stay long enough they could probably claim adverse possession, though she noted city property cannot be adversely possessed.

Refusing to Leave: People who lose their homes often wonder about their rights. Once their house has been sold by a bank in a foreclosure, for example, they may want to know how long they have before they can be forced to vacate the property.

It depends on the state's foreclosure laws, but once the house is auctioned, the previous homeowner generally doesn't have a right to be there without the new owner's permission. Even then, the new owner has to go through the eviction process before they can kick out the previous owner.

"They can refuse to leave if they like, but that will force the owners or the banks to evict them," Ham said, noting that the previous owner is staying in the home illegally.

From that point, how long the person can stay in the home depends on how long it takes for the action to make its way through the courts, but the judge will most likely rule the eviction in favor of the new owner, Gurevich said. However, there are situations that allow people to stay in their homes for a while after foreclosure.

"There have been cases when someone stays in the property for a year or for two years, either because whoever bought it is not taking any action, or the lender is not taking any action, or the paperwork is wrong," Gurevich said. A wrongful foreclosure is an entirely different matter, Gurevich and Ham said, and in that case, refusing to leave is definitely not the action to take. That's the time to call a real estate attorney and get things sorted out.

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