Squatters’ Rights & Adverse Possession Issues

On Feb. 28, 2024, ABC News [see https://bit.ly/3PeClvo] reported that after purchasing a home in October 2023 for $2 million, in Douglaston (Queens), NY, a couple discovered that the home was occupied by a “squatter.” The individual was allegedly the caretaker of the prior owner who passed away in January 2023. While many of the specific facts and circumstances surrounding the events leading up to the actual real estate closing and afterwards remain unclear, this case highlights the problems and issues that arise when individuals occupy a home that is being marketed for sale.

These cases are becoming more and more prevalent. It is important for real estate agents and real estate attorneys to bring them to the attention of their clients so they are aware of the pitfalls and problems that can arise when instances like this occur.

The Law of Adverse Possession Gives Rise to Squatters’ Rights

Squatter’s rights arise out of adverse possession laws. While many real estate professionals are familiar with the concept of adverse possession, few consider the issues relating to adverse possession when selling and purchasing real property. Adverse possession allows a person who takes possession of real property, makes improvements to it, possesses it in a public manner, and continuously does so for an extended period of time (i.e., 10 years), to acquire a full ownership interest in the real property.

The Current Adverse Possession Law as Modified in 2008

In 2008, New York State enacted critical changes to the adverse possession law under Article 5 of the Real Property Actions & Proceedings Law (RPAPL) [see https://bit.ly/3edAY0I]. Section 501 of RPAPL provides key definitions. Under Section 501(1) an “adverse possessor” is defined as a person or entity who or that “occupies real property of another person or entity with or without knowledge of the other's superior ownership rights, in a manner that would give the owner a cause of action for ejectment.” This means that an adverse possessor is an individual or entity against whom or which an owner could bring an action to evict. If an owner brings an action within the 10-year period from the point at which the adverse possession commenced, then an owner would be able to evict and remove the adverse possessor (or in the case above, a squatter) from the property.

A Review of the Basic Elements of Adverse Possession

For an individual to claim title to the property, the adverse possessor must establish the following elements: (1) claim of right, (2) possession must be open and notorious, (3) exclusive, (4) continuous, (5) actual, and (6) hostile.

Claim of Right

Under Section 501(3), which was a change and element introduced in 2008, a “claim of right” is defined as “a reasonable basis for the belief that the property belongs to the adverse possessor or property owner, as the case may be.” An adverse possessor must actually believe or be convinced that the adverse possessor has a legal right to the land being occupied.

Open and Notorious

An adverse possessor’s possession of the real property must be “open and notorious.” This basically means that possession must be obvious and noticeable. It cannot be of a hidden or unknown nature. For example, if a squatter occupies the premises in secrecy and without the owner’s knowledge it would not satisfy this element of adverse possession.

Exclusive Use

The adverse possessor must have exclusive use, control, and occupancy over the property in question. A key component of the “exclusive” element is that the adverse possessor must not acknowledge at any time during the 10-year period that the property belongs to another person, nor shall the adverse possessor allow the owner or any other person or entity to use and occupy the property. Once this occurs, the adverse possession claim will fail, however, tenancy and occupancy rights may continue to exist.

Hostile

The “hostile” element is similar to other elements and is usually found to exist if all of the other elements above exist. It basically requires that the use of the property must be without the consent or permission of the owner. If at any time during the 10-year period, permission is sought to occupy, use, or improve the property, that would immediately terminate a claim of adverse possession.

Continuous and Actual

The adverse possessor must continuously and actually occupy the property for the requisite 10-year period. The continuous element does not require that the person who initiated the adverse possession and occupancy of the property be the same person who continues the possession for the 10-year period. To clarify, “continuous” does not mean that the acts of adverse possession continue on a constant basis, but they must be repeated acts that are consistent with a claim of right and ownership.

Squatter’s Rights in New York: Trespasser or Squatter

In New York, squatter’s rights arise when an individual moves into a vacant home or apartment without the consent or authorization of the owner and remains there for an extended period of time. Squatters usually target homes or apartments that have been vacant for long periods. A common occurrence is where a squatter unlawfully enters and occupies the home of an elderly individual who goes into a nursing home, or the residence of an individual who has recently passed away. Sometimes the home or apartment is left unoccupied and unattended because the homeowner does not have any family. Other times, the individual does have family, but the individual’s family members live far away and are not able to visit or attend to the individual’s home frequently, leaving the opportunity for strangers (i.e., squatters) to move in unsuspectingly.

In New York City, when an individual takes possession of and occupies an apartment or property for thirty (30) days, that individual acquires squatter’s rights and an owner or landlord would have to commence formal eviction proceedings under New York law (see https://bit.ly/3v42QN0] to remove the squatter. Eviction proceedings can be very expensive and time-consuming. In the event formal removal proceedings are necessary, real estate transactions will be delayed considerably and may even be terminated, and in the case of the Queens couple, these issues can present significant problems even after the closing occurs.

If on the other hand, a squatter is discovered prior to the thirty (30) day period, then that person would be considered a trespasser and would be able to be removed by the authorities. The owner must contact the police immediately. This would avoid having to file a formal eviction proceeding.

‘Self-Help’ is Prohibited

Any attempt by a homeowner or landlord to remove a “squatter” (and a tenant or holdover tenant) utilizing “self-help” would be deemed an unlawful eviction [see NYC Code Section 26-521 at https://bit.ly/43e6v7q] and the owner or landlord would be subject to criminal liability. There are also significant civil fines ranging from $1,000 to $10,000 that can be assessed against owners who engage in self-help.

Some examples of “self-help” include using physical force to personally remove a squatter or tenant, shutting off utilities (e.g., heat, water, electricity, etc.), and denying physical access to the premises by changing locks. Under no circumstances should an owner or landlord ever engage in “self-help” to remove a squatter or tenant from a property.

Legislative Attempts to Change Squatter’s Rights Have Been Unsuccessful

Proposed legislation was introduced in 2013 and 2023 [see Senate Bill S5940A at https://bit.ly/3VeyzWq; Senate Bill S5979 at https://bit.ly/3IvVgxN] attempting to specifically exclude “squatter” from the definition of tenant under the eviction laws. The more recent bill, Senate Bill S5979, proposes that “a tenant shall not include a person who enters onto a property with the intent of squatting on the property or otherwise settles on land or occupies property without title, right, permission of the rightful owner or payment of rent.” It also proposes to make squatting a criminal offense and would be added “to the definition of criminal trespass in the third degree.” There may be some renewed interest in the proposed legislation in light of the increased prevalence of squatters occupying properties.

The Importance of Being Proactive and Knowledgeable

It is clear from the experience of the Queens couple that it is extremely important for owners, landlords, representatives of a decedent’s estate, real estate agents and attorneys to be aware of the potential pitfalls that can arise when squatters occupy a property or apartment. It is important for these individuals to understand they can face considerable delays and expenses to remove a squatter.

Before marketing a property for sale and prior to signing any contract, owners should discuss all of these potential issues with legal counsel. If agents are aware of these issues, they should recommend their clients speak to an attorney right away so these issues can be addressed before it is too late and before any negotiations begin. For example, if a property is being marketed as vacant and free from tenancies, it is important to include provisions in the contract of sale that allow either party to cancel the contract if the occupants do not vacate or are unable to be removed prior to a closing.

It is also important for owners, landlords and estate representatives to be proactive to avoid the issues that can arise in connection with a squatter. Since squatters obtain tenant rights after thirty (30) days, it is critical for them to be vigilant in maintaining and inspecting the property on a frequent basis. If there is any evidence that any individuals have gained access to a property or an apartment, the authorities should be contacted immediately so they may be removed as trespassers. However, if there is evidence that squatters have been on the property for an extended period of time, the police may not be able to remove them. While these issues can clearly present problems, many times they can be avoided by being diligent and being aware of the pitfalls in advance.

Legal Column author John Dolgetta, Esq. is the principal of the law firm of Dolgetta Law, PLLC. For information about Dolgetta Law, PLLC and John Dolgetta, Esq., please visit http://www.dolgettalaw.com. The foregoing article is for informational purposes only and does not confer an attorney-client relationship and shall not be considered legal advice. The views and opinions expressed in this article are solely those of the author and do not necessarily reflect the views or positions of HGAR, its affiliates, or any other entity.