Imagine waking up one day to find unauthorized occupants residing on your property, claiming it as their own. This nightmare scenario is a real concern for property owners.
This article will discuss squatter’s rights in New York and the strategies you use to safeguard your property from squatters.
How Does New York Define a “Squatter?”
In New York, a squatter is generally considered a person who occupies a property without the legal owner’s permission or authorization.
Squatting involves living in or using a property without a valid lease or rental agreement. Squatters may take up residence in abandoned or vacant properties, foreclosed properties, or attempt to occupy properties owned by someone else.
It’s important to note that the term “squatter” is not a legal designation; instead, it describes a specific type of occupancy that lacks proper legal authorization.
Can a Squatter Obtain Title to Land In New York?
The short answer is “Yes.”
A squatter can obtain legal title to land in New York through a legal process called “Adverse Possession.”
Let me tell you of a case that will show you how absentee ownership can lead a squatter to claim adverse possession.
“Mr. Anderson,” a businessman from California, acquired a 5-acre lot near Lake Success with future retirement plans in mind.
However, Mr. Anderson rarely visited or monitored the property due to professional obligations and living out of state. This limited oversight created an environment ripe for adverse possession.
In the backdrop of Mr. Anderson’s infrequent visits, a squatter, whom we’ll refer to as “Mr. Squatter,” recognized the unattended lot as an opportunity for improvement.
Mr. Squatter enhanced the land, transforming it from an ignored plot to a well-maintained tract. This transformation was marked by putting up fencing, clearing debris, paying taxes, and constructing a small house.
Ten years later, Mr. Squatter claimed legal ownership of the property using the doctrine of adverse possession.
With legal representation, Mr. Squatter initiated a lawsuit to quiet title to the land, asserting his rights based on his continuous, open, and substantial improvements to the property.
As the case progressed, evidence was produced explaining Mr. Anderson’s original intent to retire on the land and the extenuating factors that limited his involvement, especially considering he lived in California.
However, as the evidence unfolded, it became evident that Mr. Squatter’s actions aligned with the legal criteria for adverse possession, compelling the court to rule in his favor.
This case serves as a sobering reminder that property ownership is not solely determined by acquisition; it requires ongoing engagement and stewardship to retain ownership rights.
The story of Mr. Anderson and Mr. Squatter highlights the importance of proactive property management. No matter the rationale, neglecting an investment can expose property owners to unintended legal consequences.
How Does a Squatter Obtain Title By Adverse Possession in New York?
A squatter can obtain title to land in New York by meeting all the requirements for adverse possession.
A party who seeks to establish title to real property by adverse possession in New York must prove that he possessed the land and that his possession was (1) hostile under a claim of right, (2) actual, (3) open and notorious, (4) exclusive, and (5) continuous and uninterrupted for a period of ten years.” (See RPAPL § 501 (2), Civil Practice Law & Rules § 212 and Hogan v. Kelly, 86 A.D.3d 590 (2011)).
Not proving even one of these elements will defeat an adverse possession claim.
Here is what the courts in New York have said about each one of the elements necessary to establish adverse possession:
1. Hostile Under a Claim of Right
“Hostile” doesn’t mean aggressive or confrontational. Instead, it refers to the nature of the adverse possessor’s possession in relation to the true owner’s rights.
A possession is considered “hostile” when the adverse possessor occupies the property without the true owner’s permission or legal right to do so.
Hostile possession occurs when the adverse possessor occupies the property with the intention of asserting ownership rights that are adverse to the true owner’s rights.
“Claim of Right“
In 2008, New York passed a law to make it more difficult for a person to claim ownership of property by adverse possession.
Under the 2008 statute in New York, for adverse possession to be claimed, the possessor must demonstrate a “claim of right.”
This means that the person adversely possessing the property must believe in good faith that they have a legal basis to do so, such as through a deed or other legal instrument, even if their belief is ultimately incorrect.
This legal requirement aims to prevent opportunistic or unjustified claims of adverse possession and ensures that the person claiming possession genuinely believes they have a right to the property. (See N.Y. Real Prop. Acts § 501).
In New York, “actual possession” in the context of adverse possession refers to a person physically occupying and using a property as if they were the true owner of the land. This involves treating the property as their own, making improvements, and using it as a typical owner would.
3. Open and Notorious
“Open” means that the possession should be readily observable and evident to anyone with an ownership interest in the land. It should not be conducted in secret or behind closed doors.
The open element requires that the possessor’s actions are visible and conducted in a way that doesn’t try to obscure or conceal the assertion of ownership over the property.
“Notorious” refers to the requirement that the adverse possessor’s occupation and use of the property are conducted in a manner that is well-known, widely recognized, or commonly understood within the local community or among those with an ownership interest in the property.
Possession of land is considered “notorious” when it is conducted openly, visibly, and in a manner that would make it widely known to neighbors, passersby, and others who might have an interest in the land.
It goes beyond mere visibility; it means that the possessor’s actions are so evident and public that they become a matter of general knowledge or common awareness.
For example, if someone builds a structure on a piece of land, plants a garden, and uses the land as their own for many years without attempting to hide these activities, their possession could be deemed “notorious.”
This means that their actions are so conspicuous and well-known that people in the community know their use and occupancy of the property.
The “exclusive” possession requirement means that the adverse possessor must have sole control and use of the property, excluding others, including the true owner.
This means that the adverse possessor’s possession of the property should not be shared with or interfered with by anyone else.
In other words, the adverse possessor should demonstrate that they are the primary and dominant user of the property during the period required for adverse possession to be established.
They should use the property as if they were the rightful owner, without the true owner’s active presence or consent.
This “exclusive” possession requirement helps establish that the adverse possessor’s use of the property is serious and substantial, reflecting a genuine belief in their claim to the property.
It also emphasizes that the true owner’s rights have been set aside due to the adverse possessor’s continuous and unshared use.
5. Continuous For a Period of Ten Years
“Continuous for ten years” refers to the period of time during which the adverse possessor must openly, notoriously, and exclusively occupy and use the property without interruption or abandonment for a continuous span of 10 years.
The adverse possessor’s occupation of the property must be ongoing and without significant gaps. This means that they consistently use and treat the property as their own without substantial breaks in their possession.
The possession should not be disrupted or interrupted by actions from the true owner or other parties that would break the continuity of the possession.
The continuity requirement will be defeated when the adverse possessor interrupts the period of possession by abandoning the premises, where an intruder’s presence renders the possession nonexclusive, or where the record owner acts to eject the adverse possessor. (See Beutler v Maynard, 80 AD2d 982, 983).
The 10-year period begins when the adverse possessor’s possession becomes hostile, open, notorious, exclusive, and continuous. (See Civil Practice Law & Rules § 212).
There does not need to be fifteen years of continuous possession by the same person. Ordinarily, an adverse possessor can take advantage of the periods of adverse possession by his predecessor.
Separate periods of adverse possession may be “tacked” together to make up the entire ten-year period with the result that the final adverse possessor gets title to the land.
Strategies to Safeguard Your New York Property Against Adverse Possession
Avoiding adverse possession of your property involves taking proactive measures to protect your ownership rights and prevent others from acquiring legal ownership through continuous and open use.
Here are some strategies to consider:
- Regular Property Inspections: Regularly inspect your property to ensure no one uses it without your permission. This will help you identify any potential adverse possession claims early on.
- Clear Boundaries: Mark the boundaries of your property with fences, walls, or other visible markers. This can help prevent encroachments and clarify where your property lines lie.
- Communication: If you become aware of someone using your property, communicate with them in writing to assert your ownership rights and ask them to stop. This establishes a record of your efforts to prevent adverse possession.
- Property Tax Payments: Continuously pay property taxes on time. Failure to pay property taxes can weaken your claim to the property and make it easier for someone else to claim adverse possession.
- No Permission: Do not grant permission for others to use your property in a way that might be construed as allowing them to gain ownership. Any permissive use can weaken your defense against an adverse possession claim.
- Document Everything: Keep records of property surveys, deeds, property tax payments, and any communication with individuals using your property without permission. These records can be crucial evidence if a dispute arises.
- Lease Agreements: If you allow someone to use your property temporarily, create a written lease agreement that explicitly states their lack of ownership rights and specifies the duration of use.
- Regular Use: Continue using your property regularly. Regular, consistent use helps demonstrate your active ownership and can undermine any adverse possession claims.
- Legal Action: If you become aware of a potential adverse possession claim, consult a real estate attorney to discuss your options. Taking legal action early on can help protect your ownership rights.
- Post Warning Signs: If applicable, post signs indicating your property ownership. While not foolproof, this can discourage individuals from attempting adverse possession.
- Negotiation: If you discover someone is using your property without permission, consider negotiating an agreement that reaffirms your ownership while allowing them to use the property under certain conditions.
- Land Use Agreements: If you know someone using your property, you can create a land use agreement outlining their use while reaffirming your ownership. This agreement can help prevent adverse possession claims.
Do Squatters Have Rights in New York and New York City?
Squatters enjoy various rights and protections in New York City and New York State.
In New York City, the city has its own set of adverse possession laws related to apartments. When a squatter takes possession of an apartment unit in New York City, they obtain “squatter’s rights.”
In New York City, squatters are granted rights after just 30 days. It is sometimes financially easier for mom-and-pop landlords and smaller property owners to pay off the squatter to leave instead of dealing with hefty legal bills, which often become protracted and take months to resolve.
Since New York City landlords have only 30 days before a squatter can be upgraded to a tenant, landlords must initiate an eviction proceeding immediately once a squatter has been discovered.
How Can a Landowner Get Rid of Squatters In New York?
Here are some steps you can take if you have squatters on your land in New York:
- Start With a Conversation: First, determine if the individuals on your property are indeed squatters or if they claim to have some form of legal right to be there, such as a lease agreement. You’ll need to address the situation differently if they have any legitimate claim to the property.
- Contact Law Enforcement: If the individuals are squatters and you want them to leave, you can start by contacting local law enforcement. However, law enforcement might consider it a civil matter and might not get directly involved in removing squatters.
- Don’t Use Self-Help: In New York, carrying out forcible evictions is against the law. This means property owners must adhere to the state’s judicial eviction process to displace squatters and reclaim rightful possession of their property lawfully.
- Serve Notice: To start the legal process, you’ll likely need to serve the squatters with an eviction notice. The type of notice required can depend on the situation. Consult with a lawyer in your area to determine the appropriate notice to use.
- File for Eviction: If the squatters do not leave voluntarily after being served an eviction notice, you’ll likely need to file for eviction in court. This involves filling out the necessary paperwork and following the legal process for eviction as outlined in New York law.
- Obtain a Court Order: If the court determines that the squatters should be evicted, they will issue a court order requiring the squatters to leave the property within a specified period. If the squatters still do not leave, you may need to involve law enforcement to enforce the court order.
- Enforce the Court Order: If the squatters do not leave after the court order is issued, you will need to work with law enforcement to physically remove them from the property. It’s essential to follow all legal procedures to avoid any potential legal liabilities.
I strongly recommend seeking legal advice from an experienced real estate attorney in New York if you have concerns about squatters and adverse possession. An attorney’s expertise will clarify local laws, the feasibility of your claim, and the potential risks involved.