Explaining Trespassers, Squatters, and Adverse Possession!

Last Spring, prior to adoption of the new Georgia “Squatter Reform Act” criminalizing squatting, I provided pro-bono services to the owners of a vacant residence.  Our clients, were a couple who inherited a small one story single-family residence in rural Georgia, sitting upon 30 acres of land.  After inheriting the property, the residence remained vacant and unfurnished for several months, while the couple decided what to do with their inheritance.  As responsible owners, the couple visited the property every several weeks to check on their new asset.  Imagine their surprise when they visited the property one weekend, only to find it occupied, fully furnished, and the locks changed.  Since I was the only lawyer they knew, the couple contacted my team seeking pro bono help to regain control of the property they had inherited.

In order to help the couple, we needed to identify the differences between trespassers, squatters and adverse possession.  Each group is entitled to different rights and liabilities.  A trespasser is a person who knowingly enters onto someone's  property without permission, but does not intend to live upon the property.  In rural areas, hunters entering upon wooded areas posted with no trespassing signs represent a common example of  trespassing.  Trespassing is subject to criminal prosecution in most every State and trespasser's are subject to arrest as well as civil lawsuits.

Squatting is a form of trespassing, the only difference being a squatter intends to live upon the property they have entered without permission.  Ironically, unlike trespassers, squatters generally have rights, are not subject to criminal prosecution, and cannot be arrested. Generally, squatters need only claim they are tenants of the owner to invoke such protections, after which the owner must evict the squatters from the owners property.  Invited guests who refuse to leave, can sometimes become squatters with rights if they simply provide domestic services during their authorized visit.  The individuals occupying the residence inherited by the couple we were assisting represent a common example of squatting. Squatters are subject to civil lawsuits, eviction proceedings, and damages, but typically not criminal prosecutions.

In many States, squatters can potentially obtain ownership of property they live upon without permission through adverse possession.   Adverse possession typically requires that the squatter occupy the property in an open and obvious manner, to the exclusion of others, with or without knowledge of the property owner, in a continuous and uninterrupted manner for a prescribed period of time.  The time duration is generally somewhere between 7 and 20 years, dependent upon whether the squatter claims title through the payment of property taxes.  Continuous use of a alley or driveway belonging to another represents a common example of adverse possession.  Although squatters are typically not allowed to live in a residence for sufficient time to establish adverse possession, it is possible where owners sleep on their rights. 

In the case of the young couple who sought our help, we had to comply with formal eviction proceedings against the squatters.  This began with a written demand for possession, after which we were required to file and serve a complaint for eviction, and then await a hearing in the local magistrates court.   We drafted the demand for possession and the couple posted the demand upon the front door of the residence occupied by the squatters.  Several days later, the couple was informed the squatters had burned the residence to the ground after vacating the property and disappearing.  The couple never discovered the identity of the squatters, and no one has ever been prosecuted for destroying the residence.  Thankfully, the residence was insured and the couple received the full value of their inheritance.

The new Georgia “Squatter Reform Act”  would have given the couple far stronger rights against the squatters had it been in place when they started eviction proceedings.  Squatters are now issued citations allowing them 3 business days to produce a lease or rental agreement confirming they are authorized to occupy the residence.  If the squatter cannot prove authorized occupancy, they are subject to arrest and misdemeanor conviction, streamlined evictions, and monetary relief. Squatting  in both urban and rural areas, is far more common than thought, and the time for enhanced laws treating squatters as trespassers is long overdue.  Hopefully more States will criminalize squatting and provide greater rights to homeowners.