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Legally Distinguishing Trespassers, Licensees, and Squatters

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Social protest movements and non-political individuals may occupy property without the landowner's consent or continue an allowed occupancy beyond the agreed time. When government ownership is involved, it may be legally easier to remove these individuals than when private landowners take action. Public policy favors that government buildings and roads, for example, be open for public use. These considerations typically are not present when private property is involved. Consequently, when privately owned property is occupied, the law may pay more attention to the occupier's legal rights. This comment briefly legally distinguishes trespassers, licensees, and squatters in the private property context. Acquire legal counsel in specific situations.

Trespassers knowingly and intentionally occupy property without the consent of the landowner. This may be both a criminal any civil case. Statutes frequently require that there be a posted sign or verbal "no trespassing" or "closed" notice. Criminal statutes require proof of intent and notice confirms intent. Law enforcement officers will arrest and remove trespassers. A civil lawsuit for damages may be brought by the landowner. Defenses to trespass include consent or emergency. A landowner may not be sued by a trespasser for injuries suffered on the premises unless the landowner intentionally injured the trespasser without reasonable cause or otherwise utilized excessive force.

A licensee has some form of landowner consent for the initial entry. This consent may be implied, as when a customer enters a store during business hours, or expressed in words verbally or in a written agreement. While there may be related crimes occurring, such as theft, assault, or battery, law enforcement officers will almost always not act to remove the licensee based upon the initial entry alone. Law enforcement officers will characterize this situation as civil, not criminal. If law enforcement officers act without a criminal violation, they might be subject to a lawsuit for false arrest. A landowner may be legally liable for negligently or intentionally injuring a licensee.

Removing a licensee requires an eviction proceeding. This may be time consuming and expensive. Self-help remedies may expose the landowner to a civil lawsuit or even criminal charges. If the licensee situation is categorized as a landlord-tenant relationship, then a variety of statutory protections may protect the licensee from lockouts, utility cutoffs, etc. In many jurisdictions, an individual such as a spouse or relative who fears domestic violence may obtain a restraining order without a court hearing (ex parte). If this occurs, the landowner may be legally prohibited from entering the premises or being near the licensee until the restraining order is lifted. Violating a restraining order could result in arrest, imprisonment, and fines. This otherwise appropriate restraining order procedure may be abused.

A squatter (adverse possessor) occupies property (frequently a building) without the consent of the owner and under a claim of ownership. If the squatter openly and continually occupies the premises for a statutorily determined period of years, then the squatter acquires ownership. Evicting squatters requires an eviction proceeding since there is, unlike trespassing, a claim of ownership. If the squatter claims to have a deed to the property, then there may be a judicial proceeding required to determine title (ownership) of the property. This is more complex than eviction. Abuses of the law governing recorded deeds and title may occur.

Law encourages the owner to rapidly act when non-owners occupy property. The longer the occupancy, the more legal rights that the occupier acquires. The legal system also requires an owner to be very cautious when granting consent to others to occupy property. Allowing an individual to occupy a spare bedroom "until he gets on his feet" may become a personal and legal nightmare. Employing live-in help has similar hazards. Parties may have radically different implicit assumptions. Individuals may also abuse trust.

These occupancy arrangements are all too often verbal and vague. There may arise a dispute concerning the terms of the agreement and who has violated the agreement. At a minimum, the landowner needs a written document signed by the occupier that acknowledges the landowner's ownership and that the occupancy is a license, revocable at any time and for any reason in the sole discretion of the landowner. A given jurisdiction may consider this language to be excessively one-sided and unenforceable. State legislatures have broad authority to legislate changes in these legal doctrines. Consult an experienced attorney in occupancy situations.