Heather McKinney 5/30/21 Heather McKinney 5/30/21

Legal Question: Too Squat to Handle - Squatters Rights

This week’s question is from Madeline Ramirez via the form. Madeline asks:

I recently watched an episode of Fresh Off the Boat in which the mom, Jessica, had to deal with renters/squatters on her rental property. The squatters referenced Squatters Rights to keep her from calling the police/evicting them. If you own property and find someone living there illegally/without your knowledge/without paying rent, at what point can’t you kick them out? How accurate are the squatter-scenarios we see in the media, and what is the extent of squatter’s rights in reality?

Thanks for asking, Madeline!

What are Squtters Rights?

This is a great question, and one that comes up in first-year Property Law classes in law school. Squatters’ rights are legally known as Adverse Possession. The laws vary by state, but for the most part, there are similar requirements across states. In Texas, the law governing adverse possession can be found in the Civil Practices and Remedies Code at Section 16.021 et. seq.

In order for a non-owner to claim ownership over a piece of land, there must be “an actual and visible appropriation of real property, commenced and continued under a claim of right that is inconsistent with and is hostile to the claim of another person.”

Let’s break that down.

1. Actual and Visible Appropriation of Real Property: This means that the “squatters” would have to actually be on the land they’re claiming in a visible way. This means the squatter can’t be hidden from view and must be visibly on the land so that the owner would have a chance to notice them there.

2. Commenced and Continued Under a Claim of Right that is Inconsistent with and Hostile to the Claim of Another Person: This means that when the possession of the property began and as it continued, the squatter claimed ownership over property that was legally owned by someone else.

Case law in Texas has added a few more requirements on top of that. The requirements are as follows with a little explanation next to each.

1. Actual possession of the disputed property - The squatter has to “actually” possess it – the squatter can’t just want to claim the land. He or she must actually be on the land. Additionally, they can’t just be there for a day or two (see below for time requirement).

2. That is open and notorious – Like we said above, they have to be obviously on the land, not hiding out and sneaking around.

3. Peaceable – The squatters can’t threaten physical violence to keep the owners out.

4. Under a claim of right – The squatters must intend to claim the land for themselves.

5. That is consistently and continuously adverse or hostile to the claim of another person – This means the land land legally belongs to another person, for instance, based on deed records. Squatters must also be on the land “continuously” for the statutory time. If they leave and come back, the clock resets. They also can’t try to claim land they abandoned.

6. For the duration of the relevant statutory period – There are various time frames and what a squatter can do based on how much time has passed. The timing goes up to ten years, but the squatter can attempt to assert some rights after just three years in Texas.

If the squatter has a document - like an old deed - that purports to give them land, they can try getting ownership in just three years. If the squatter has paid property taxes, has some kind of documentation, and has cultivated the land, they can try getting ownership in 5 years. Otherwise, the default timeline is 10 years. In cases where the owner is disabled, the law makes the squatter wait 25 years.

If you own property and find someone living there illegally/without your knowledge/without paying rent, at what point CAN’T you kick them out?

You usually would NOT be able to kick out a squatter if they have a successful claim of adverse possession. The time frame would depend on the rules above (or whatever rules apply in your state).

If it’s been less than three years, you can try to get them off your land. You can’t use force to remove anyone, but you can file an eviction lawsuit.

In Texas, you’d have to deliver a notice-to-vacate to the squatters, giving them a three-day notice that they need to leave. If they refuse to leave after three days, then you can head to your local Justice of the Peace court and file an eviction suit. Usually your case will be heard within a month or less. Because the squatters have no legal right to be there, absent a successful claim of adverse possession, the court would likely rule in the landowner’s favor and kick the squatters out.

How accurate are the squatter-scenarios we see in the media, and what is the extent of squatter’s rights in reality?

In 2020, a formerly homeless man in Oakland, California named Steve DeCaprio successful petitioned a court to become the legal owner of an abandoned house. He began squatting there three years before going to court, during which time he spent time and resources in fixing the place up.

The prior owner had died, and none of the heirs had attempted to claim the home. As such, after the required time period under the law, DeCaprio was able to petition the court and claim the house for himself. He is now the legal owner of the property.

On the flipside, Heidi Russell, a woman in New York City, found herself in a nightmare scenario when the roommate she let stay with her for a few months refused to leave. The Cut covered the strange case where the temporary roommate who Russell tried to boot after 2 months stayed for more than a year. The owner of the apartment couldn’t get rid of the woman due to strict renters’ rights under New York law and the CDC’s eviction moratorium, according to the New York Post. Though Russell secured a warrant of eviction, it remains on hold due to the pandemic.

Something similar happened recently to a California couple. Tracie and Myles Albert closed on a home worth over $500,000 in Riverside, California in January 2020. Sounds like a dream, right? It would be, except the previous owner refused to leave for FIFTEEN months, during which time the new owners had to pay the taxes and fees. The Alberts had purchased the home for cash with their entire life savings, so for over a year, the previous owner had the cash in his account and continued to live in the sprawling 4-bedroom home with a view rent-free. It wasn’t until a news story broke on the situation that the squatters finally left on their own.

In the case of Russell and the Alberts, the squatters were able to stay, not because of squatters’ rights, but because of the CDC’s eviction moratorium. An attorney interviewed by The Sun said he handled several cases similar to the Alberts’ where previous owners – not renters – were being allowed to stay in homes they no longer owned.

The CDC moratorium is different from squatters’ rights. So far, it has helped millions of renters avoid eviction and homelessness during the pandemic. According to the nonpartisan research and policy institute Center on Budget and Policy Priorities (CBPP), “An estimated 10.9 million adults living in rental housing — 15 percent of adult renters — were not caught up on rent, according to data collected April 28–May 10.” The moratorium, which expires on June 30 in Texas, is the only thing standing between those people and eviction.

While squatters’ rights require more than what you sometimes see on TV, you can see how they bend both ways. If a home would be otherwise abandoned as in the case of Steve DeCaprio in Oakland, it may be a good thing to have a squatter come in, improve it, and in the process, avoid homelessness. In other cases, they can cause a real-life nightmare where homeowners are denied enjoyment of their own property like the cases of Heidi Russell in New York or the Alberts in California.

Thanks again for asking, Madeline!

Got a question? Submit it here. They can be legal what-if questions, questions on current events, or questions about the legality of actions in TV shows or movies you’ve seen. I never ever want to answer your personal legal questions, so don't send those. Love you, but I don’t do that.

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This piece first appeared in Sunday Morning Hot Tea. Subscribe so you don’t miss another piece.

Heather McKinney 3/7/21 Heather McKinney 3/7/21

Legal Question: Bathroom Mess (Viral Apartment Hole TikTok)

A Mess in the Bathroom

This week’s question comes from Shannon via text.

Shannon asked, “Can a landlord be sued if there is an open and unlocked void behind your bathroom mirror that goes to an abandoned apartment?”

Excellent question, Shannon. Let’s jump in! Or should I say, climb in??

THE BACKSTORY

By now, many of you have seen the viral TikTok of user @samanthartsoe who discovered her bathroom mirror was a portal to another apartment unit. First, she noticed a burst of cold air coming from the bathroom wall. She stood beside the door jamb, and her hair noticeably moved from the force of the air.

Once she determined her mirror was also a source of cold air, she removed the mirror to reveal A BIG ASS HOLE! (Not to be confused with a big asshole, which you may not be shocked to find in your bathroom.)

Left, she removes her mirror. Right, what she found behind it. Images from @samanthartsoe on TikTok

She then assembled some friends to watch as she climbed through the hole herself and asked them to stick around just in case. Uhhh yeah, not sure your mortal friends can save you from the actual Candyman who you are doomed to encounter in the hell dimension inevitably through that hole.

Left, she climbs through the portal. Right, her buddy, John, offers words of support. Images from @samanthartsoe on TikTok.

On the other side of her mirror, Samantha discovered an entire apartment. It was not furnished or even finished out. Trash bags littered the floor. There was, however, a non-dusty water bottle that Samantha called “signs of life,” leading viewers to conclude that someone had recently been in there. Yikes!

Girl run. NO. Image from @samanthartsoe on TikTok

In the end, she made it out of the apartment and back to her place safely. The video concludes with Samantha saying, “My landlord is getting a really fun phone call tomorrow,” and a note that she is “cementing this mirror down.” Fair enough.

What a nightmare! But now the question…

CAN YOU SUE YOUR LANDLORD FOR THIS?

As always, you can sue anybody for anything. Whether and to what extent you can sue your landlord varies by state. Our bathroom wall adventurer is located in New York City (NEW YORK CITY?!) so she’s governed by New York law.

Under New York law, an owner of a rental property must “keep all and every part of a dwelling … in good repair, clean and free from … [any] other thing or matter dangerous to life or health.” This is similar to the law in Texas, where I practice, that says a landlord has a duty to repair a condition that “materially affects the physical health or safety of an ordinary tenant.” As you can see, the standards are a little different, but in general, landlords have a duty to repair certain apartment conditions.

That begs the question — is a giant hole in the wall a threat to her life or health meaning Samantha’s landlord is required to fix it?

Based on the case of Ruthie Mae McCoy, I sure think it is. Ruthie Mae was a tenant at a Chicago housing project who was murdered in her unit after reporting to police that men entered the place “through her medicine cabinet.”

Ruthie’s story is heartbreaking for several reasons, not the least of which is the fact that police later concluded that Ruthie Mae was right. Her attackers did indeed climb in through her medicine cabinet. A Chicago Reader story on the subject included tales of multiple other residents in Ruthie Mae’s building suffering home invasions where perpetrators climbed through medicine cabinets in order to access adjacent apartments.

Those of you who have watched the movie Candyman may recognize the name Ruthie. The original author of the Chicago Reader story explained how parts of Ruthie Mae’s story ended up in the film. Even though it was based on a British short story, Candyman contained some real slices of Chicago life, including a story similar to that of Ruthie Mae.

NOW HOW DO YOU DO GET THEM TO FIX IT?

Let’s agree that the giant hole constitutes a “thing or matter dangerous to life or health.” What can our brave TikToker, Samanatha, do about it?

The first step is always to make a request to the landlord or building super to repair the condition. The NYC Rent Guidelines Board outlines the next steps. If you ask the landlord/super and get no response, the RGB suggests contacting the owner. If there is still no action after that, a tenant can sue in court.

In New York, if the landlord refuses to act, a tenant can sue a landlord to make repairs to their unit using an action called an HP or “Housing Part” case.

A tenant can get the forms they need online from LawHelpNY, which provides free legal information. There is even a step-by-step online form that will pre-populate the complaint and provide information on how to serve it to the landlord and file it with the court. The documents needed are an “Order to Show Cause Directing the Correction of Violations” and “Verified Petition in Support of an Order to Show Cause.”

Once the action is filed, the city inspector should come out and make a report of the conditions in need of repair. The tenant can then use that as evidence in their case against the landlord.

If a condition in an apartment is “urgent and dangerous” to a tenant’s health or safety (like, idk, AN ENORMOUS HOLE IN THE WALL THROUGH WHICH MURDERERS COULD CLIMB???), a tenant can ask the court to go forward without a city inspection. Though a city inspection report is helpful evidence, I’m thinking video footage of a tenant climbing through and showing the extent of the hole is pretty strong, too.

Once the tenant files their claim, they will appear in Housing Court at a hearing, and the judge will decide on the case. The landlord will either be required to fix all of the condition, part of the condition, or not fix anything if the tenant is found to have caused the issue.

In Texas, the process is somewhat similar, but like I said, laws vary by state. If you find yourself in a state other than New York faced with a hell portal in your powder room, check out your local legal aid organizations who sometimes provide free online resources or may be able to provide help via phone.

SO, WHAT SHOULD SHE DO??

Samantha’s idea of calling her landlord is a good first step. The idea of an attacker climbing in through a mirror hole is not far-fetched, so the landlord should take immediate steps to fix it. If not, she can certainly take them to court. Though, I think the several million views on TikTok may put a little pressure on the landlord to make things right without having to go through all that.

Whatever she does, I would also advise that she not stand in front of the mirror and say anything five times in a row. Better not to risk it.

Thanks for the question, Shannon! And thanks to Shannon Joyce (different Shannon) for tagging me in the Chicago Reader story about Ruthie Mae McCoy on Twitter.

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This piece first appeared in Sunday Morning Hot Tea. Subscribe so you don’t miss another piece.