Successfully Dealing with Squatters

Believe it or not, the term “Squatter” is a recognized legal term with a specific meaning. Black’s Law Dictionary 7th ed. provides the following definition: “[S]quatter – A person who settles on property without any legal claim or title.” Black’s also provides the following definition of “[S]quatter’s [R]ights:” “The right to acquire title to real property by adverse possession . . . ”

Most of us don’t think of squatters as having actual legal rights in real property. But they may. As Black’s infers, if a squatter remains on property long enough and otherwise satisfies all of the elements for adverse possession, then a squatter can obtain a legal title to real property. In addition to potentially gaining title through adverse possession, a squatter that peacefully occupies real property may also have a present possessory interest. Should the actual owner forcibly remove the squatter from the property, the squatter may have a legal claim against the owner for any injury to their person or property.[1] Even if the true owner only interferes with the squatter’s quiet possession without injuring the squatter or their property, the squatter may have a right to sue the owner in tort for nonstatutory forcible entry even though the squatter’s possession is wrongful.[2]

When a property owner discovers a squatter on their property, they have the option of calling the police. If the squatter has set up a tent or has otherwise started living in the property and if it’s clear they have entered the property unlawfully, then the police may either order the squatter to move out in short order or may arrest them. Sometimes a squatter will break into a property in order to gain access. They might set up a camping situation indoors in a vacant commercial building. If utilities have been shut off it may be clear that an occupant is effectively camping in the building. In these situations, the police may readily conclude that a squatter didn’t enter the property with permission. But if the squatter has moved into the property so that they look like a tenant or if they entered the property by permission and have overstayed their welcome, then the police may be unable to confirm that a trespass is occurring. The police may consider the continued occupancy to be a civil matter. In that event the owner may need to file an unlawful detainer or suit for ejectment in order to have the squatter removed.

A person who enters property by permission of the owner may become a tenant pursuant to the doctrine of “Tenancy at Will.”[3] A tenant who “holds over” following a termination of their tenancy occupies real property pursuant to a “Tenancy at Sufferance.”[4] Local police may be unwilling to take action against such a tenant, and it’s likely the property owner will need to file an action in unlawful detainer or ejectment in order to have the tenant removed.

Family properties are a common source of problems. An inability to informally resolve these problems at an early stage can lead to quiet title or trust litigation actions, including petitions under Probate Code section 850.

Here’s an example. An adult child moves into the family home with Mom or Dad. Mom or Dad eventually passes away. The adult child is left as the sole occupant of the property. Mom and Dad’s trust provides that the family home be liquidated and the proceeds distributed to their children in equal shares. The trustee (who is frequently one of the other children) is eventually faced with the task of liquidating and distributing the trust assets to the other children as the trust beneficiaries. When the trustee sibling informs their other sibling that they will need to move out of the parents’ home, trouble can arise. The occupying son or daughter may claim that Mom or Dad promised them that they could stay indefinitely; or that they bore the burden of Mom or Dad’s care for a long period of time; or that Mom or Dad promised them a disproportionate share of the house. Sometimes the resident child will produce documentation supporting their claims. Family relationships and old hurts, wounds or inequities may be brought to the surface and before long a trust litigation matter is filed and everybody is talking to each other through their lawyers. I have mediated many of these cases; while money is always important, successful resolution of such cases often requires that emotions and feelings be handled with skill, care and respect.

Anybody who has done much work with family real property transactions knows that in addition to not documenting lease arrangements or real property conveyances, families frequently forego the time and expense of preparing valid family business or estate planning documents. Family members readily convey real property interests to each other without ever documenting the intentions or agreements of the parties. This can lead to situations where family members end up occupying a family property without any kind of written lease or other documentation. Even though these family members aren’t true “squatters” it can feel like they are, and this can lead to surprised, disappointed or angered family members, which often leads to trust litigation, quiet title or contract actions.

Once this happens, family members are presented with two realistic options. One is to fight it out in court. The second is to mediate early. Even though emotions can run high in these kinds of cases, the good news is that there are many variables to work with in achieving resolution. Money is always important, but successfully handling non-monetary considerations can be critical. When a party says they don’t care how much money they get so long as the other party doesn’t get more, it’s a sure bet that emotion, respect, dignity and a sense of fairness occupy center stage in the dispute. Fortunately, such cases can often be resolved at mediation when non-monetary issues are handled with a skillful, perceptive touch.

[1] Daluiso v. Boone (1969) 71 Cal. 2d 484, 499
[2] Allen v. McMillion (1978) 82 Cal. App. 3d 211.
[3] See Covina Manor, Inc. v. Hatch (1955) 133 Cal. App. 2d Supp. 790.
[4] See Hull v. Laugharn (1934) 3 Cal. App. 2d 310, 314.