Property Rights

Are 'Squatters' Rights' Out of Control?

Too many property owners are having trouble asserting their rights, but not everything is "squatter's rights."

|

squatters-rights | Lex Villena
(Lex Villena)

A man's home is his castle. Or is it?

Over the past couple of weeks, squatters' rights—whereby someone who isn't a legal owner or tenant claims a right to stay in someone else's property—has moved from a 30 Rock joke to the subject of white-hot internet discourse.

Kicking off this controversy have been several viral episodes of frustrated property owners trying to eject unwanted people from their homes.

Most prominently, New York City resident Adele Andaloro was arrested on camera after trying to self-evict several people who she says had illegally occupied a home she inherited from her parents. Before that, Washington state landlord Jaskaran Singh went viral for staging a protest outside one of his rental properties where his tenant hadn't paid rent in close to a year.

In January, Bloomberg had an in-depth investigation into metro Atlanta's housing market, where a real estate industry group estimates as many as 1,200 for-rent, single-family homes have been illegally occupied recently.

Venezuelan provocateur Leonel Moreno made waves with a TikTok video urging migrants to move into vacant homes and claim squatters' rights.

The more sensationalist corners of conservative media have hoovered up these stories to declare an "epidemic" of squatting spreading across the country, which President Joe Biden is allegedly encouraging.

That in turn has provoked a stream of "well, actually" commentary from liberal outlets arguing all this talk of squatting is just right-wing "hysteria" and that the real problem is overpowerful landlords who can evict tenants on a whim.

So, is the U.S. experiencing a squatting epidemic?

This is a thorny and frustrating topic to discuss because, in the most literal sense, there's no such thing as "squatters' rights" in America. No lawmaker has introduced a "squatters' bill of rights." Open up your state's code, and you won't find a "squatters' rights" section.

The closest thing to literal squatters' rights would be states' adverse possession laws that allow people to take ownership of someone else's property after making exclusive use of it for years or decades. But as Pacific Legal Foundation attorney Mark Miller notes in a recent squatting explainer, adverse possession cases typically involve properties that have seemingly been abandoned, and bear little resemblance to the kinds of cases that are going viral right now.

Instead, we're seeing a lot of different situations where owners are having difficulties removing unpaying occupants from their property. These have all been lumped together, somewhat unhelpfully, under the umbrella of "squatting" and "squatters' rights," but the individual circumstances and laws at play vary considerably.

Many of what's being described as "squatters' rights" cases are episodes of already illegal fraud or trespass: someone moves into a home and falsely claims (often with the aid of fraudulent documents) to be the legitimate owner or tenant. The Atlanta cases Bloomberg covered are mostly examples of this. So is Andaloro's situation in New York City. It's unclear how often this happens or whether it is happening more often now.

The Bloomberg article suggests a few reasons why these episodes might be happening more often. The increasingly online, remote business of property management makes it easier for scammers to gain access to vacant properties. Online billing enables people to produce real documents allegedly showing proof of residence.

The scammers in these cases can be accurately described as squatters. Depending on the sophistication of the fraud and the local laws governing the removal of illegal occupants, reclaiming one's property might involve more than just a call to the police.

Andaloro's case has drawn a lot of attention to a provision of New York City law saying that a property owner can't unilaterally evict someone who's "lawfully occupied" a property for 30 consecutive days or more. Instead, they have to go to housing court and get a warrant to remove the unwanted occupant.

When Andaloro tried to change the locks on her home and kick out the people claiming to be legal tenants, she was arrested for trying to perform a warrantless self-help eviction.

It is shocking and unjust that Andaloro would be led away in cuffs for trying to reclaim her property. But, for all the reasonable outrage her case has attracted, it's not a neat example of "squatters' rights."

The police who showed up at Andaloro's house were confronted with one person claiming to be the legal owner arguing with other people claiming to be legal tenants.

Andaloro reportedly had the deed to the house with her but, from the perspective of the police, that doesn't immediately settle whether the people she was arguing with were actual renters or squatters.

In response to Andaloro's case and several other related situations, New York Republican lawmakers have proposed a bill allowing police to immediately evict someone from a residential property based on a homeowner's sworn complaint.

That would certainly make it easier for property owners to remove people squatting illegally. But it would also seemly leave legitimate, paying tenants, who have a contractual right to stay on someone else's property, without many protections.

It seems reasonable, as real estate writer Brad Hargreaves argues in an X post, that there would be a court process for sorting out these property disputes.

The problem, as Hargreaves notes, is that New York's housing court is deeply dysfunctional right now and it takes months or years to resolve landlord-tenant disputes. Currently, there are nearly 200,000 active eviction cases in New York state. That's up from 33,000 active cases before the pandemic.

Andaloro explicitly cited the time it would take her to vindicate her property rights in housing court as the reason for trying to do a self-help eviction.

For the most part, the cases gumming housing courts in New York and elsewhere aren't cases of illegal squatting or fraud, but rather run-of-the-mill non-payment eviction cases. About 80 percent of residential eviction cases in New York are for non-payment.

Reason covered the case of one New York City landlord who spent four years trying to evict a non-paying tenant.

New York is probably the worst offender when it comes to lengthy eviction processes, but lots of (mostly liberal) cities and states aren't much better. The delinquent tenant being protested by Singh, the Washington landlord, hasn't paid rent since May 2023, per reporting from The Stranger. He reportedly had a spotty record of paying rent even before that. It's inexcusable that landlords have to spend months or years trying to kick out a non-paying tenant.

Liberal and left-wing outlets that cover these cases typically glide over a tenant's non-payment of rent as a minor detail. Publicola, a Seattle-area news publication, spends most of its coverage of Singh's case explaining that Singh owns multiple rental properties and that conservatives of all people helped organize the protest outside his rental property (as if either is particularly relevant).

Still, to describe slow-as-molasses housing courts as examples of "squatters' rights," as some media reports are doing, is a stretch. The alleged squatters in question started as invited, legitimate tenants. The property owner is still within their rights to demand that they pay rent, and file for eviction if they don't.

At best, dysfunctional housing courts create procedural squatters' rights, where a tenant can spin out the eviction process for months or years while enjoying free housing.

There are a lot of reasons that eviction processes in some jurisdictions are taking forever right now. Pandemic-era eviction moratoriums froze the processing of eviction cases for months or even years. (It wasn't until January of this year that landlords in Los Angeles could pursue non-payment evictions again.) Courts are now trying to sort through that backlog of cases, even as new eviction cases are filed.

State and local right-to-counsel laws—which provide tenants facing eviction with free legal representation—have achieved their explicit goal of slowing down eviction cases even more.

Given that most eviction cases are for straightforward non-payment, tenant attorneys have an incentive to stretch out proceedings by as much as possible. That delays the inevitable eviction and potentially strong-arms the landlord into paying a tenant to leave.

Also gumming up housing courts are state requirements that landlords who accepted government funding during the pandemic to cover a tenant's unpaid back rent drop their eviction cases. In many of those cases, the tenant in question went right back to not paying, so the landlord had to go to the back of the line and file for an eviction all over again.

During the pandemic, to be sure, we did have something akin to actual "squatters' rights" when all levels of government adopted eviction moratoriums. As Reason has repeatedly covered, landlords were stuck with non-paying, occasionally abusive tenants and literally no legal ability to remove them.

Those moratoriums are over, but states and cities have incorporated many of their features into permanent policies. Los Angeles now prevents landlords from pursuing evictions against non-paying tenants who've been approved for housing assistance, for instance. They can't evict people who've adopted pets in violation of their lease agreement.

These policies aren't quite "squatters' rights." But they are part of a growing body of "tenant protections" that limit landlords' ability to decide who they want to rent to, how much they can charge, and whether they can even take a unit off the rental market.

Miller and George Mason University law professor Ilya Somin both argue that laws that needlessly burden property owners' ability to reclaim their property from out-and-out squatters or non-paying tenants could be considered unconstitutional takings. Landlords prevented from removing such people from their property would be within their rights to sue their local or state government.

Others have suggested requiring long-term leases to be filed with the government, with the idea that better records would protect legitimate tenants while allowing for the expedited removal of illegal squatters without court involvement.

One can see a lot of merit to this idea. It would also be a tough idea to implement given how poorly many local governments manage property records and the widespread informality of the residential property rental business.

In the immediate term, the best thing that states and localities could do to safeguard landlords' property rights from squatters and delinquent tenants alike would be to build up the capacity of their housing courts.

That could involve hiring more housing court judges. New York landlords have proposed creating a pre-court mediation program to handle non-payment cases before an eviction is filed.

It's likely not politically practical, but eliminating right-to-counsel laws and cutting government funding to legal service providers that cynically manipulate the housing court process would also speed up the processing of eviction cases.

Private property rights are a foundational part of any free country. It is therefore rather shocking how long it can take to protect one's property rights in the courts. It's an issue of urgent concern, squatting epidemic or not.