A guide to squatters’ rights
Everywhere we turn these days we see stories of individuals taking up residence in properties they don’t own. It’s called “squatting,” but it’s nothing more than trespassing.
This explainer clarifies why squatting is immoral and illegal, why it’s growing, and how to stop it.
What is squatting?
“Squatting” describes moving into a property without any legal claim or title to the property. Such a person is “squatting”—living on—someone else’s property without consent from the owner.
Many cities and states give squatters “rights” in the sense that they treat a squatter like a tenant in a landlord-tenant dispute, protecting the squatter from being quickly removed from the property. Such laws are puzzling because the property owner in these circumstances did not agree to be a landlord to these so-called “tenants.” Yet these jurisdictions allow squatters to remain in private property, excluding the property owner. For example, New York City makes it extremely difficult for property owners to evict squatters once the squatter has been in a property for just 30 days—a policy Joe Rogan criticized as “basically allowing people to steal people’s houses.”
Is squatting the same as “adverse possession”?
The squatting we are seeing today on TikTok and in big cities is not the same as adverse possession within the meaning of American history and tradition, although in the past the two terms were often used interchangeably.
Adverse possession is a common law concept, developed centuries ago, that arose when property appeared to be abandoned and someone came along and wanted to lay claim to the property. The adverse possessor had to openly possess the property and often had to begin paying the property taxes, and at the end of several years of adverse possession, the possessor had to go to court to get court approval for this new ownership of the property.
Historically, American law would not protect the kind of trespassing that is occurring today. For one, the properties squatters are seizing are not abandoned. One recent squatter rented a Los Angeles mansion on Airbnb and then stopped paying, squatting in the multimillion-dollar home for over a year. In a New York case featured by John Stossel, squatters moved into a widow’s home while she was selling it. These blatant acts of trespass are a far cry from traditional adverse possession of abandoned properties.
Is squatting unconstitutional?
Yes. Based on the Supreme Court’s decision in Pacific Legal Foundation’s Cedar Point Nursery v. Hassid case, PLF believes many state laws that allow squatters to reside on a property for months, if not years, amount to unconstitutional Fifth Amendment takings of private property without just compensation. In Cedar Point Nursery, the Supreme Court explained that government-approved physical occupations of private property are takings. That would be the case here, where state or local laws—like in New York City and California—are being relied upon by squatters to live on private property, despite the fact that they have no legal right to live on those properties where they are squatting.
Although PLF believes squatting amounts to an unconstitutional taking, the courts have not recently considered the argument. If you find yourself facing a squatter on your property, please reach out to PLF to see if your case could be the one that establishes that squatting is unconstitutional.
Is squatting new?
It’s not new. It is a practice that can be traced to the 1960s and ’70s when it was seen as a kind of “social justice” to say you had a right to housing and to ignore property rights. You don’t have something you need? Then just take it. We saw this in Europe and here in the United States.
But it’s getting worse, for reasons I’ll discuss below.
Why has squatting become such a widespread problem?
Two reasons:
(1) The law of supply and demand. Over the past several decades, our local, state, and federal governments have made it harder and more expensive to build housing. Restrictions on where and what you can build—including outright prohibitions on duplexes and granny flats in many places—have limited the supply of affordable housing options. Meanwhile, we have more people than ever in America that need housing: Our population grows every year, and the poverty rate is up. That’s the growing demand. Unless we increase supply, the problem will get worse.
(2) Courts move extremely slowly on evictions. Too many states, especially the blue states like Illinois and New York, protect squatters like they are tenants, making it hard to remove them from your home. SQUATTERS are not TENANTS. But the law doesn’t always recognize the difference.
Sophisticated squatters, like we’re seeing on TikTok, know that the courts can take months, if not a year or more, to evict a squatter.
In one recent Seattle case featured in National Review, a landlord tried to evict a serial squatter from his $2 million home. But thanks to a tenant advocacy group that defended the squatter, and a backed-up court system, it took the landlord seven months even to get a hearing. Meanwhile the squatter lived in the home rent-free.
What can the government do to solve the squatting problem?
Two things:
(1) Build, baby, build. The government needs to make it easier for developers to build. LESS RED TAPE. That will lower the cost of housing. Read my colleagues Larry Salzman and Brian Hodges for specific ideas.
(2) Make it easier for property owners to remove squatters from their property quickly. Squatters don’t care about the law, but they do care about consequences. We need states to make it much easier for property owners to remove squatters. The State of Florida has taken the lead on this, passing a law just this year that requires law enforcement to remove a squatter from your property unless the squatter can show he paid rent in the past or has a lease. We need more laws like this in other states.
States should also consider passing laws that allow self-help. Owners who know the squatter has no right to be on the property should be protected by law if they take matters into their own hands and eject the squatter. This would be a new kind of Stand Your Ground law like we’ve seen when a homeowner is faced with a burglar or trespasser.
In the meantime, what can people do to protect themselves?
(1) Most importantly, GET TO KNOW YOUR NEIGHBORS AND LOCAL LAW ENFORCEMENT. If you are acquainted with your neighbors and local police officers or sheriff’s deputies, they’ll know if something is amiss on your property, and they’ll let you know. I remember when my snowbird grandparents were away for the winter from their home in New Jersey, the police and their neighbors would call them in Florida if they saw something at their vacant home that looked funny. That doesn’t happen today because people don’t know each other like they used to.
(2) Make sure your property looks lived-in. Vacant homes are targets for squatters.
(3) Put locks and deadbolts on doors and set alarms. The harder it is to get into your home, the more it deters a squatter from breaking in.
(4) Put up “No Trespassing” signs. Again, squatters are looking for easy-target properties that look simple to take over. If you show that you mean business, the squatter is less likely to try your property.
Watch Mark Miller discuss squatters’ rights on Fox News:
