By: Kyle Rochefort
Imagine a family has just returned from a vacation. They cannot wait to be home after a long day of traveling. They finally turn onto their street, only to find a car they’ve never seen before in the driveway. Lights are on in the house, and as they timidly approach the front windows, they see people in the living room, relaxing on the couch as if in their own homes.
This is a reality for “tens of thousands of homeowners” across the United States (U.S.). In 2023, a Texas homeowner found herself locked out of her home by a squatter showing authorities a fraudulent lease. Notably, the squatter had been previously evicted on three separate occasions. In Maryland, another homeowner returned from a trip to find two squatters in her bed who had sold about $50,000 of her belongings.
The trend is not exclusive to squatters invading homeowners’ primary residences. Some use rental channels to gain access, then refuse to leave. In June, a North Carolina Airbnb host’s guests refused to leave on their check-out date. The squatters ushered away the homeowner’s cleaner and posted a sign on the front door: “No trespassing. We will vacate the property when you file the proper paperwork with the civil Magistrate for an eviction, for we are legal residents of this home. If you try to enter we will press charges for violation of expectations of privacy.” Clearly, these ‘professional squatters’ are sophisticated–they know the law and how to exploit it.
Professional squatting has also become common across Europe. In December of last year, squatters took over an expat homeowner’s flat in Barcelona, replaced the front door with an interior bathroom door to ensure the owner could not use his key, and attacked the owner with knives upon his attempt to regain possession of the flat. Similarly, in 2021, an English homeowner returned to his residence just outside of London—one he had owned since 1990—to find changed locks, missing furniture, and a new “owner” conducting a renovation project.
In this situation, what course of action should one take? Contact the authorities? This is presumably most people’s first instinct. But therein lies the problem: authorities are often unhelpful, directing victims toward overwhelmed courts and slow civil eviction procedures, or even backing the squatters and their possessory interests. George Washington University law professor Jonathan Turley, discussing the professional squatting problem in New York, explained, “if you found a stranger sitting in your car and called the police, they would immediately ask to see the registration and decide who owns it . . . . They wouldn’t let the thief drive off.” But for homeowners, “the law is stacked against [them],” as evicting a trespasser in New York can take years. Meanwhile, the homeowner cannot shut off utilities, remove belongings, or do much of anything at all.
Inadequate remedies also exist in Europe. For the English homeowner described above, it was not until November 2023, “following two years of court battles,” that he was restored as the owner of his property. Likewise, when a family visited their Ibiza home in April last year to find a squatting family who had changed the locks and sold some of their belongings, they too were met with delayed and ineffective remedies. The homeowners state that the Civil Guard “told [them] they couldn’t evict without a court order,” but a month later, “the police report [hadn’t] reached the court yet and preliminary proceedings to evict . . . still [hadn’t] been opened.”
Even greater shock value comes from stories like that of the expat homeowner in Barcelona. After being attacked by the knife-wielding squatters—an interaction Barcelona police “were uninterested in”–the homeowner later recovered the property when the squatters left it unoccupied. Upon the squatters’ return, the police not only disregarded the homeowner’s pleas that he was the rightful owner but arrested him based on the squatters’ fabricated claim that the owner attacked them. The officers reportedly asserted, “even though you may be the owner[] of the property, this is the home of those who have occupied it.” On the arrest report, officers attributed property damage to the owner’s rechanging of locks rather than the squatters’ complete removal of the front door and chastised him for “taking the law into [his] own hands.”
As one might imagine, stories like these have captured media attention worldwide. They have also triggered a response from state lawmakers across the U.S. For instance, Florida Governor DeSantis signed House Bill 621 into law in March, allowing homeowners to request that police immediately remove any non-tenant squatter who unlawfully occupies property and refuses to leave. The newly created Fla. Stat. § 82.036 allows the submission of a form complaint, and upon receipt, the sheriff is to verify that the claimant is the record owner and serve notice “without delay” on the squatters. Additionally, Georgia’s state legislature recently passed the Squatter Reform Act that makes squatting a criminal trespass “to be handled by police, not housing court,” and a New York State Senator proposed several bills that redefine the definition of an ‘occupant’ to exclude both trespassers and squatters.
The same is true in Europe. In fact, the United Kingdom’s (U.K.) reform efforts were among the earliest. In 2012, the U.K. enacted legislation criminalizing squatting in residential properties and imposing potential six-month jail sentences and £5,000 fines. However, as evidenced by the above, enforcement mechanisms remain lacking. More recently, the Spanish Basque Nationalist Party submitted a proposal to Spain’s Congress of Deputies that included a mechanism by which Spanish courts could order evictions to be carried out within 48 hours, and the Italian Parliament adopted a new law “with the two-fold purpose of creating a new specific crime [for squatters] and speeding up repossession procedures by legitimate owners.”
There is a clear problem and clear efforts to fix it. But what does all of this mean moving forward? It is easy to justify some of the above legislative changes, as they mostly provide specific, narrow remedies. But how far should reform go? This question becomes more nuanced in light of what the commonly used phrase ‘squatters’ rights’ really means. There is no actual squatters’ rights doctrine; it is rather a term of art. ‘Squatters’ are simply trespassers, and their ‘rights’ are derived more from a lack of enforcement mechanisms than any law granting unlawful possessors a property interest or right.
However, some improperly bridge the gap between squatters’ rights and adverse possession. If there is any doctrine to point to that grants squatters’ ‘rights,’ it is adverse possession. But in reality, adverse possession has practically nothing to do with the above-described issue unless the squatter persists long enough, without interference, to make a formal claim for the property. Yet, based on this more immediate and temporary problem, some legal scholars “argue adverse possession should be abolished” or “at best, . . . updated.”
There are instances where bad faith actors successfully claim property through adverse possession, but they are rare. In the U.S., Westlaw reports that “adverse possession” was a key term used in 5,046 cases from 1960-2015. In other words, there are only around 92 cases annually in the U.S. The number of successful claims is presumably even lower, and many undoubtedly stem from minor boundary disputes. Further, adverse possession laws in the U.S. and the E.U. generally already include safeguards to protect lawful owners. For example, over half of U.S. states require an adverse possession claimant to produce some document related to their ownership, albeit defective, or to pay property taxes throughout the statutory period. Among those states without these added protections, the lowest statutory period is ten years.
Essentially, it appears some scholars and legislators are attempting to address issues in a manner that may not be entirely suitable or effective. Consider the previously mentioned Florida House Bill 621. Again, the specific, tailored process for efficiently removing squatters is justified and necessary; however, as attorney Kevin Rabin describes, “another provision of the bill would completely repeal the ‘doctrine of adverse possession.’”
But the world has trespass and eviction problems, not an adverse possession problem. The policy behind adverse possession “is probably as old as history itself,” as discussions regarding maximizing a property’s utility by preventing idleness and waste can be traced as far back as 2250 B.C. Thus, one could argue that all property in developed societies was originally obtained via some form of adverse possession, formal or informal. Clearly, abandoning the doctrine now, thousands of years after its inception, doesn’t literally invalidate all existing property interests. But what does it say about the modern applicability of such a foundational body of law?
Rabin believes adverse possession has some modern applications. As he points out, before House Bill 621, “if a friend of a deceased homeowner—who ha[d] no heirs or identifiable family members—occupie[d] and [paid] taxes on the property for seven years, [they] would have cause to become the legal owner.” However, that is no longer the case. “Without that legal avenue to property ownership,” the abandoned property is “likely . . . to end up in the hands of investors.”
Maybe mass reform is necessary. These professional squatters certainly deserve zero protection from the law, and that is certainly the direction we are headed. But maybe we don’t. This post does not purport to provide a specific solution. But it does advocate for the proposition that reform should be calculated rather than impulsive and that adverse possession, even if significantly curtailed, should survive in at least some capacity based on situations just like the one above.
