Bradley S. Kraus
Attorney at Law, Warren Allen, LLP
One of the most common issues I have encountered in my time as a landlords’ attorney is dealing with unauthorized individuals living in my clients’ properties.
These issues have only increased with COVID-19. If you have been a landlord long enough, you have likely heard individuals utter the words “squatter’s rights” or some other formulation of the phrase.
Such rights do not exist in the Oregon Residential Landlord and Tenant Act. Oddly enough though, without a strong rental agreement, arguing that an individual is living in the premises without your consent can also be the most difficult tenant default to prove.
The above point is clearer when you think about how to prove someone is actually “living” somewhere. After all, it would be awkward—and illegal—to set up cameras in your tenants’ leased premises. It is important to remember that the phrase “unauthorized occupant” appears nowhere in the ORLTA. Therefore, landlords are left with what their rental agreements define as an “unauthorized occupant” in framing the default under the ORLTA.
If you have a solid rental agreement from any reputable company, it will likely contain a prohibition against individuals occupying the premises without the consent of the landlord. If you think you have an unauthorized occupant, your first step is to analyze the amount of time your rental agreement allows someone to stay or visit the premises before becoming an unauthorized occupant. That is the easy part; proving someone lives somewhere—as opposed to a tenant having a friend visiting—can prove daunting.
Before considering whether to serve a notice upon a tenant for an unauthorized occupant, you should confer with your attorney about your chances of success, should such an issue be challenged. The question I ask my clients is, “How do you know he/she/they live there?” A hunch simply will not do. Seeing someone every couple of days also likely will not suffice—after all, your tenants can have friends visit. However, if you see the unauthorized occupant’s car parked overnight—arriving at night, leaving in the morning—or if this new individual begins receiving packages at the premises, such evidence may be usable.
Subletting is a similar issue to unauthorized occupants. There are no express prohibitions in the residential portion of the ORLTA against subletting. Hence, the same rules and potential proof issues apply to subletting issues. Ensuring your rental agreement contains an express prohibition against assignment and subletting is the first step. Proving that you have a sublessor is the largest hurdle in the race. With the advent of sites like AirBnB and Craigslist, if your premises is listed on one of these sites—as they often are—such evidence will be useful as you and your attorney navigate a way forward.
Finally, I have encountered many situations during COVID-19 where tenants simply abandon a dwelling unit, and random people appear to take their place. If this issue arises, you may have rights under the unauthorized possessor statute—ORS 90.403—of the ORLTA. If you satisfy the elements listed therein, a 24-hour notice directed at the unauthorized possessor can get you on track to recover your property as quickly as the law allows.
Many individuals will cry “no-harm-no-foul” when it comes to the aforementioned situations.
However, landlords have the right, and an obligation—not only to the owners of the properties they manage, but also their other tenants—to know who is living within their properties. The outbreak of COVID-19 does not change these rights or obligations, and nothing in House Bill 4213 or any other eviction moratoriums prohibit taking action to address the above issues.
Squatters’ Rights Explained
Property owners around the globe have been paying close attention to squatting— a topic that boomed in recent years thanks to the establishment of organized groups like Take Back the Land.
Many residential and commercial property owners are now apprehensive about leaving their buildings unoccupied— concerned that onlookers may view their realty as a squatting opportunity.
Even landlords seeking tenants must be exceptionally vigilant when it comes to screening potential renters, as some may pay their rent for a short period of time before deciding to occupy the space unlawfully.
But what, exactly, are the legalities surrounding squatting? And how should landlords who are being affected by this phenomenon go about addressing it?
These are the questions we’ll be answering in today’s post.
But first, let’s cover the basics.
What is a squatter?
A squatter is any individual who decides to inhabit a piece of land or a building in which they have no legal right to occupy. The squatter lives in the building or on the property they select without paying rent and without lawful documentation stating they own the property, are a law-abiding tenant, or that they have permission to use or access the area.
What are squatters’ rights?
Squatters rights refers to laws which allow a squatter to use or inhabit another person’s property in the event that the lawful owner does not evict or take action against the squatter.
Typically, squatters rights laws only apply if an individual has been illegitimately occupying a space for a specific period of time. In New York, for example, a squatter can be awarded “adverse possession” under state law if they have been living in a property for 10 years or more.’
It’s important to note, however, that each state has their own laws surrounding this topic. Thus, how squatting is approached and dealt with varies greatly depending on where it occurs.
Which states have squatters rights?
Squatters rights, also known as “adverse possession” laws, exist in all 50 states. However, how these laws are enforced, and when they are enforced, differ greatly from state-to-state.
The below states have a squatters law which requires the individual to have lived on the property in question for 20 years or more:
The below states have a squatters law which requires the individual to have lived on the property in question for 19 years or less:
Note: Some of the states listed above require the squatter to possess a deed, or to have paid taxes during their occupancy, while others do not. In some states, if the squatter can produce the required documentation, the number of years may be reduced.
How to evict a squatter
With the squatting movement gaining traction, more and more landlords are looking to arm themselves with information about how to get rid of squatters.
This is an excellent step to take, since successfully defending a property against individuals who intend to take advantage of squatters rights will rely heavily on the landlords understanding of the law and their ability to respond promptly.
Below are the permissible steps we recommend taking when evicting squatters:
1. Call the Police
The more quickly you contact your local law enforcement, the better. They will be able to file an official police report, which you can use in the future if you end up having to pursue an eviction via the court system. The more evidence and documentation you have to demonstrate your efforts to remove the individual(s) from your premises, the stronger your case will be.
Remember, you can not legally try to intimidate the squatter or forcibly remove them from your property. If you must engage with the individuals who are illegally inhabiting your property, it’s best to have a police officer present.
2. Provide a Formal Eviction Notice
After you have notified the authorities that there is an illegal tenant on your property, you’ll need to file an Unlawful Detainer action. The process of filing such an action can vary from state to state, so it’s important to speak with a lawyer or your local court office to ensure you understand all of the required steps.
If the squatter refuses to leave after being ordered to do so, you can take further action by filing a lawsuit. After doing so, a hearing date will be set and both parties will be required to attend. If the courts rule in your favor (which is most likely), the judge will order the police to escort the squatter from the premises. At this point, you will be allowed to change the locks to the property.
4. Remove Any Possessions Left Behind
As frustrated as you may be at this point, it’s important to remember that you can’t always just discard any possessions a squatter leaves behind. Some states require landlords to provide written notice to the squatter stating a deadline by which they must collect their belongings. Because squatters are often difficult to contact, you can protect yourself by having this letter prepared and bringing it to your court hearing. In this same notice, you can disclose what you intended to do should the belongings not be collected by the specified date. Either way, be sure to speak to a lawyer or your local judicial office to ensure you are following the proper procedures.