Squatter’s Rights: Protecting Against Adverse Possession

By Taylor Miller, OBA Project Specialist

In the years since the pandemic, it seems that instances of squatters refusing to leave a property, and getting away with it, have been on the rise across the nation. When it comes to protecting against the risk of squatters, knowing the law in your state is step one. Squatter’s rights, also known as adverse possession, is a legal concept that allows individuals to claim ownership of someone else’s property through continuous and open use. These policies surrounding adverse possession vary significantly from state to state for residential real estate. For investors, understanding these differences is crucial as they can have a profound impact on property investment strategies and outcomes. In this article we will examine the differences in policy between California, Texas, and Florida.

Adverse possession is a legal doctrine that dates back centuries and is rooted in the idea that land should not sit idle and unused. Instead, it should be put to productive use by those willing to take possession of neglected properties. To successfully claim adverse possession, certain requirements must typically be met, including continuous use, open and notorious possession, hostility to the true owner’s interests, and a specified period of time.

California is renowned for its robust tenant protections, which can complicate matters for real estate investors dealing with squatters. The state’s laws emphasize tenant rights, and in some cases, squatters leverage these protections to remain in a property, defying the owner’s request for eviction. California’s adverse possession laws, while stringent, can provide squatters with legal grounds to claim ownership after a five year period of continuous occupation. Investors in California need to navigate a complex legal environment that includes strict eviction procedures and lengthy court processes. It is crucial for investors to stay vigilant and act swiftly when faced with a squatter situation to prevent potential legal entanglements and significant financial losses.

Texas takes a starkly different approach to squatters’ rights compared to California. The state’s legal framework is generally more favorable to property owners, prioritizing their rights over those of squatters. Texas law allows property owners to swiftly evict squatters, with a more straightforward legal process and shorter court processes compared to California. A squatter in Texas would have to continuously occupy a property for ten years before being legally named the owner. This landlord-friendly environment makes it easier to regain possession of property in the event of a squatter occupation, however it is still important to stay clued in on any potential policy changes when it comes to your rights as a landlord or owner. Quick and decisive action in eviction procedures is key to protect your investment.

Florida’s approach to squatters’ rights falls somewhere between the stringent, landlord-friendly policies of Texas and the complex, tenant-advocating laws of California. The state’s laws aim to strike a balance between protecting property owners and ensuring fair treatment of tenants, including squatters. Florida’s adverse possession laws require an individual to consecutively occupy the property for seven years and pay all the property taxes during those same seven years. Additionally, the burden of proof falls on the tenant to produce evidence for a claim of adverse possession. The legal process for eviction still requires careful navigation on behalf of the owner as specific procedures must be followed to avoid potential legal complications.

The varying policies on adverse possession directly impact real estate investment strategies. Savvy investors may view lax laws as an opportunity to acquire distressed properties through adverse possession, especially in states where the time requirements are relatively short. This approach can be particularly attractive for those seeking to revitalize neglected neighborhoods or acquire properties with untapped potential. However, the risk of adverse possession claims also poses challenges for real estate investors, especially those looking to buy properties with unclear ownership histories. Investing in states with stringent adverse possession requirements may reduce the likelihood of such claims, but it also means a longer waiting period before acquiring full legal ownership.

Real estate investors can take proactive measures to protect their investments from adverse possession claims. Regular property inspections, prompt resolution of any encroachments, and payment of property taxes can help demonstrate continuous ownership and prevent others from making adverse possession claims. Additionally, investors should be vigilant about monitoring their properties for any signs of unauthorized use or occupation. Setting up surveillance on site and thoroughly screening tenants before signing a new lease agreement are a few ways to mitigate the potential for a squatter situation. Promptly addressing issues as they arise can prevent the establishment of adverse possession claims and protect the investor’s interests in the long run. Still, the best tool is an updated knowledge of your state’s adverse possession policies so that you can properly and promptly approach this situation from a legal standpoint and allow the justice system to do the work for you.

Navigating squatters’ rights in residential real estate demands a nuanced understanding of state-specific policies. California’s tenant-friendly environment, Texas’s pro-property owner stance, and Florida’s balanced approach all present unique challenges and opportunities for real estate investors. By staying informed, acting proactively, and implementing sound risk mitigation strategies, investors can successfully navigate the complex landscape of squatters’ rights in any given state.

This article was published in the March / April 2024 edition of the Think Realty Magazine and can be viewed online at Think Realty.