More and more California property owners are confronted with individuals who have taken up habitation on their land and refuse to leave, called “squatters.”
A squatter is a person who occupies real property without ownership rights or permission from the true owner of record of the land. Typically, a squatter will move into abandoned, vacant or neglected structures on another person’s land or on the land itself and take up residence to live. The time duration could be a few weeks or for years.
Tenants of land and the structures on it who once had permission from the property’s owner to be on possession but refuse to leave once the lease has ended are not deemed squatters under California law. The term for a tenant that no longer has the right to live on one’s land after the lease has expired and has not been renewed is a “holdover tenant.”
“Trespassers” under California law are not squatters. “Trespassers” are those individuals who enter another person’s property (land or structure) without permission for a short period of time but do not take up residence.
Under certain circumstances, a squatter under California law could obtain legal title through the owner of record land through “adverse possession.”
California Code of Civil Procedure section 325(b) states that for an adverse possessor to gain title through adverse possession, the claimant must prove (1) possession under the claim of right or color of title; (2) “actual, open, and notorious” occupation of the premises which gives reasonable notice to the true owner; (3) possession which is adverse and “hostile” to the true owner; (4) continuous possession for at least five years; and (5) payment of all taxes assessed against the property during the five-year period.
The elements of California Code of Civil Procedure section 325(b) are broken down as follows:
- Hostile/Adverse —The squatter must not have a valid lease or rental agreement with the owner.
- Actual — The squatter must have actively lived in the property for a certain length of time.
- Open and notorious—The squatter’s possession of the property is open and obvious to neighbors or anyone else. They are not living there “in secret” or trying to hide their presence.
- Exclusive — The squatter does not share possession of the property with anyone else. They prevent others from living there like an owner would.
- Continuous — The squatter must hold continuous and uninterrupted possession of the property (a squatter in California must do so for five consecutive years).
Should the squatter prove these requirements in a court action, California law holds that they can legally have ownership to the property that they have squatted upon and are now deemed the owner of the property.
In the event that the property owner discovers a squatter living in his or her property, he or she needs to consult with an attorney immediately to commence the eviction process.
- Serve the squatter a formal eviction notice. If the squatter refuses to leave after the allotted notice period, the owner must file a complaint for unlawful detainer in California Superior Court.
- The court will issue a summons to court, which must be served to the squatter by the sheriff or another authorized process server.
- The squatter has five days to file an answer with the court or dispute the case. If they do not, the owner may be able to request an immediate order of possession.
- If the squatter does file an answer, a hearing will be scheduled within twenty days.
- If the squatter does not have a valid claim to adverse possession of the property, the judge will rule in the property owner’s favor. This judgment can be presented to the local sheriff, who will serve the squatter a writ of possession.
- The squatter will have five days to move out after the writ is posted. If they do not move out within this time frame, they will be forcibly removed by law enforcement.
I recommend the following to help prevent squatters from gaining a foothold on your property that you do not occupy.
- Post “no trespassing” signs on it.
- Have regular inspections of the property.
- Have secure fences, gates and locks at the property to help prevent entry by those who are not allowed on the property.
- Install security alarms, remote surveillance cameras and lighting to help prevent entry by those who are not allowed on the property.
- Request neighbors report any strange activity on the property to you.
- Try not to have the property unattended to by tenants.
- Maintain the property so that it does not look uninhabited.
Learn more about selling property where squatters have lived.
And be sure your business is protected with California real estate Errors and Omissions insurance (for companies) or California real estate E&O for individuals.
By: Edward McCutchan
Sunderland | McCutchan, LLP
1083 Vine Street Ste. 907
Healdsburg, CA 95448
(707) 433-0377
emccutchan@sunmclaw.com
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