Squatters’ rights or adverse possession is an antiquated legal situation that occurs, with regard to HOAs, when someone moves into a vacant home and makes it their residence without the owner’s permission. With adverse possession, a squatter can acquire another person’s home without compensation, by living in the home for a specific period of time. This time period can vary per individual state statute.
To make a claim for adverse possession, the squatter must overtly occupy the property wholly and maintain the property as their residence. To occupy the property wholly squatters must keep out all other parties, meaning other squatters cannot be making the same claim or other parties cannot be coming and going.
Adverse possession has been in the news media, but HOAs have been dealing with adverse possession since the beginning of the housing crisis in 2008. During the crisis when some homeowners abandoned their homes, and in some instances even after financial institutions foreclosed, squatters would move in and take up residence in these abandoned homes.
No community has been exempt, in 2013 a $2.5 million dollar mansion in Boca Raton, Florida was taken over by a squatter. The mansion was a bank-owned foreclosure when a 23 year old man took up residence claiming adverse possession. Apparently no one saw the man break into the home, and thus it was a civil matter and not a criminal matter, so the police were unable to remove the man. In Florida at the time (Florida revised their adverse possession statutes in 2014), if a squatter could maintain adverse possession for seven years, the squatter could claim legal title of the home. The 23 year old man in this case, being knowledgeable of the law, went as far as contacting the county’s appraiser’s office to notify them of his possession and thus apparently his intent to stay for the required seven years.
Another current trend to the adverse possession situation are squatters having written leases to the home. If a neighbor inquires or if the police are called to address someone living in the “abandoned” home a lease is produced. If the police are involved and a lease is produced, the matter usually becomes a civil legal issue, no matter if the writer of the lease is not the owner of record with the register of deeds.
There are at least two different “lease” situations that seem to arise: (1) the squatter has somehow come up with a lease to the property that they know is bogus; (2) the squatter has entered into what they believe is a valid lease with a third party that represents that they have the legal authority to lease the property. The latter being a scam where the squatter/tenant has been duped by a third party into renting an abandoned home or bank owned home.
No matter which version of the two possible events has occurred, it can be extremely difficult to evict the squatter, especially if the home is just abandoned and the original homeowner is not in the picture to pursue eviction. A bank, with a home that is completely bank owned from a completed foreclosure, can file for eviction; however, the lease, even a bogus lease, may have legal standing in a court of law under certain circumstances. With these legal hurdles, banks have been known to pay squatters or tenants to leave the property.
While most adverse possessions that arise in HOAs are rarely this extreme, there are still challenges that occur with abandoned homes and bank foreclosed homes. It goes without saying that squatters taking up “residence” in these homes do not have the best interests of the individual property or the overall HOA at heart.
While each state has their own specific statutes that govern adverse possession, there are at a minimum, five basic conditions that generally have to be met to successfully gain legal ownership:
– Actual possession of the home: The person in adverse possession must physically use the property as a property owner would. This behavior, besides living in the home, could be maintaining the property, such as mowing the yard, repairing the structure, or even changing locks.
– Non-permissive or hostile use of the home: The person in adverse possession entered the home without permission from the actual owner.
– Open and obvious use of the home: If the legal owner is aware of the adverse possession this condition is met; however this can also be met by simply posting a sign noting such in a window.
– Continuous use of the home: The person making a claim of adverse possession must hold the home continuously for the time period required by that state’s governing statutes.
– Exclusive use of the home: The person claiming adverse possession must inhabit the home to the exclusion of the actual owner. If at any time the actual owner inhabits the home, adverse possession cannot be claimed or the time requirement starts over from that point.
In most instances, bank owned properties posting “No Trespassing” signs on the front window and regular property inspections eliminate the ability of squatters to successfully claim adverse possession. Abandoned homes pose more of an issue, however, with the foreclosure rates dropping, this is becoming less and less of an issue. Fortunately, in most jurisdictions in the United States, squatters rarely can make successful legal claims for adverse possession, however, getting squatters out of a home swiftly may still be a challenge.
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