It’s Time To End Squatter’s Rights – OpEd

By Ryan McMaken

Last month, New York City homeowner Adele Andaloro was arrested after changing the locks on a house that had been seized by squatters. According to The New York Post: “Andaloro was charged with unlawful eviction because she had changed the locks and hadn’t provided a new key to the residents. The residents, however, are squatters.

Fortunately, Andaloro’s arrest was filmed and went viral, reviving an ongoing debate over squatters “rights,” under which trespassers can take over an unoccupied house or piece of land and attempt to establish legal ownership.

Not long after the Andaloro video surfaced, an immigrant TikToker with 500,000 followers posted a video encouraging other migrants to squat in private residences in the United States. The immigrant, Leonel Moreno, explained to potential squatters that under US law, “if a house is not inhabited, we can seize it.”

These videos have fueled increasing concern among property owners who have witnessed the explosion in the numbers of aggressive homeless residents in both central cities and suburbs. This, coupled with millions of new foreign nationals flooding into US cities in recent years, has further increased concerns about a sizable, rootless and impoverished population searching for opportunities to seize unoccupied homes. 

These recent examples have prompted many Americans to wonder why squatter’s rights exist at all. Historically, there have been some arguably reasonable justifications for the practice, such as in times past when real estate records were far less precise and well preserved. In modern times, however, squatter’s rights have little purpose beyond redistributing property to favored interest groups. Moreover, squatter’s rights in modern settings bear less and less resemblance to the squatter’s rights of history. 

Thanks to all this, it is becoming increasingly clear that squatter’s rights have outlived whatever usefulness they may once have had. The time has come to end squatter’s rights altogether.

Rationales For Squatter’s Rights 

The idea of squatter’s rights—often known by the more technical term “adverse possession”—is not new and dates back centuries to a time when private ownership of land was often not nearly as clear-cut as it is now. As legal scholar Jeffrey Stake has noted “This was a time before deeds were recorded in county courthouses… In the absence of a good set of records, contests would turn on evidence of earlier enfeoffments.” For example, as historian Keith Wrightson has explained, in a period before extensive written records and contracts, evidence of longstanding agreements about land usage and ownership might boil down to testimony from local elderly residents who relied on memories about what Party A had negotiated with Party B decades earlier. In cases like these, current possession of a piece of real estate was some of the best evidence that possession had been legally transferred in the past. 

It is partly for this reason that adverse possession has always included an element of time. Historically, in most jurisdictions, a squatter must reside on the property in question for a period of years—often twenty years or more—in order to claim ownership. It is assumed that if the previous owner was willing to tolerate the squatter for so long, the land may have been the squatter’s all along. Or, the previous owner may have effectively abandoned the property. 

In short, adverse possession was often justified on the grounds that it helps deal with ambiguity in claims of ownership. Even today, real estate titles are not always crystal clear. A property’s chain of title can be “clouded” with unclear ownership in the past. (This is why people property owners buy title insurance.) Historically, judges and policymakers have found squatter’s rights to be useful in that they can “reset” ownership claims and “quiet” a clouded title. Adverse possession thus provided a means for settling potentially long-term disputes over the chain of title. 

Other rationales for squatter’s rights are based on popular notions about proper use of real estate. For example, adverse possession has at times been supported as a means of forcing property owners to keep an eye on their property. If long absences encourage squatting, the thinking goes, then owners are more likely to ensure the property is in order. Similarly, squatter’s rights have been justified on the grounds that absent owners aren’t using the land as efficiently or as productively as they ought to be. By this thinking, it is better to have squatters on the land, using it and improving it, rather than to let the absentee owners “do nothing.” Some supporters of adverse possession—both historically and now—have believed that property owners who are not “using” the property in a visible fashion don’t deserve to own it.

Squatter’s Rights as Violations of Property Rights 

Conceivably, one might conclude that adverse possession is acceptable when used as a means of settling disputes in cases where the true owner of real property is not clear. 

Beyond this, however, adverse possession amounts to little more than a means of violating property rights. 

For instance, the use of squatter’s rights to somehow make land use more efficient is wholly without merit if we value the protection of private property. After all, the idea that “society” can decide what constitutes “efficient” or “correct” use of land relies on the deeply misguided notion that there is some objectively proper use of land independent of the owner’s subjective preferences. A more sound view of property ownership, on the other hand, would recognize that a property owner ought to be free to determine for himself what constitutes efficient use. If a property owner’s preference is to let a field sit fallow or a building sit empty for a period, then the owner has determined that this is the most profitable course of action—whether profitable in terms of monetary gain or in terms of psychic profit. No government planner or judge can better determine how best to use property. 

Other rationales for squatter’s rights, such as motivating a property owner to visit his land regularly, amounts to a form of extortion. In this case, the regime is essentially saying “do what we want or we’ll hand your property over to whatever random trespasser chooses to settle there.”

Moreover, claims that a lack of active use by owners constitutes abandonment are extremely suspect. It is unclear why a piece of real estate becomes “abandoned” simply because the owner has not been present for a time. This is all the more untenable in modern times in which the owner of a property is nearly always clearly indicated in official records. Murray Rothbard further contends that ownership via contract certainly does not “expire” simply because an owner is physically absent. Nor is this true in cases where a person has established ownership by homesteading, the process of homesteading need not be continuously renewed. On this, Rothbard writes: 

The common law of adverse possession arbitrarily sets a time span of twenty years, after which the intruder [i.e., the squatter], despite his aggression against the property of another, retains absolute ownership of the land. But our libertarian theory holds that land needs only to be transformed once by man to pass into private ownership. Therefore, if [a potential squatter] comes upon land that in any way bears the mark of a former human use, it is his responsibility to assume that the land is owned by someone. Any intrusion upon his land, without further inquiry, must be done at the risk of the newcomer being an aggressor.

Squatter’s Rights as a Political Weapon

There are many times and places, however, in which pro-squatter groups rights do not even contend that ownership rights are ambiguous, or that the land would fall into disuse and mismanagement without the squatter’s taking over. 

Rather, squatter’s rights have at times been used as political weapons and as a means of essentially buying votes or rewarding politically favored groups. In these cases, policymakers simply have determined that squatter’s rights are politically expedient. 

For example, in the United States in the nineteenth century, squatting nearly became a sort of federally approved welfare program. As explained in detail in John Suval’s book Dangerous Ground: Squatters, Statemen, and the antebellum Rupture of American Democracy, Jacksonians and other factions of the Democratic party in Congress actively supported widespread squatting throughout the American frontier. At the time, squatting was employed as a means of stealing land from Indians, Mexicans, and any other group deemed undesirable by pro-squatter activists in Congress. In this way, squatting served as a type of social policy. When officials sided with squatters over the rightful owners, this would essentially transfer wealth from the out-of-favor group (i.e., Mexicans and Indians) to the favored group of Anglo Americans. 

In other cases, the mechanism was slightly more complex. Often, the federal government would seize land from its rightful owners (i.e., Indians) first, and then auction the land off as a means of increasing revenue for the federal government. Pro-squatter policies, however, encouraged squatters to occupy the land illegally rather than pay for it at auction. Once the squatters were in place and refused to leave, Democrats in Congress would then pass bills handing this land over to the squatters permanently. This, of course, shifted federal revenue collection away from settlers—who got free land—and placed the revenue burden on others. 

Democrat policymakers supported these squatters because it was assumed that upon receiving these political favors, the squatters would thereafter vote for pro-squatter Democrats as political payback. 

Modern Urban Squatting

In the twentieth century, support for squatters came from typically leftwing activists who favored squatting as a means of providing housing for low-income individuals and households. During the Great Depression, of course, squatting became commonplace in many areas, although few of these squatters were able to establish true ownership via adverse possession proceedings in court. 

Squatter activism again revived during the 1990s, as in the case of a standoff between city officials and squatters in the East Village in 1995. Again, in this case, squatters only ultimately won a temporary victory and were eventually evicted. 

Today, squatter’s rights continue to be a perennial issue of contention, and it’s easy to see why cases like that of Adele Andaloro strike a chord with so many Americans. Even for law-abiding non-homeowners can imagine what a nightmare it would be to inherit a house from one’s dead parents only to have that house seized by trespassing squatters. Indeed, it is easy to see how a middle-class family, having lost use of a home in this fashion, could face immediate financial ruin. 

It is notable that the squatter movements of the 1930s, the 1990s, and today are attempts at urban squatting in contrast to rural and agricultural squatting in times past.  Rural squatting tended to be lower-density, and property boundaries were less clear. Moreover, rural squatters in many cases tended to keep to less productive parcels of land, and the presence of squatters on one part of an owner’s land did not necessarily force the owner from the property overall.

Urban and suburban land is something else entirely. Urban and suburban squatters are more likely to impose a much larger and more immediate cost on the rightful owners. When urban and suburban squatters take over a home in these areas, the owner is typically unable to use the property at all, and the owner may be rendered homeless himself. 

Moreover, when homeless trespassers attempt to take advantage of squatter’s rights in urban and suburban homes, there is no true confusion over ownership or over property lines. These squatters do not appear anywhere on the title, and were never long-term residents. 

Even worse, some cities like New York City have greatly liberalized squatter’s rights to allow for trespassers to claim squatter’s rights on a much shorter timeline than what is historically known in cases of adverse possession. Or, in some jurisdictions, such as Atlanta, officials are unwilling or unable to evict trespassers in a timely fashion, and trespassers become de factor squatters within a period of weeks or months. Indeed, modern squatting in suburban and urban homes is increasingly unlike anything that would historically be described as true adverse possession. 

Yet, squatter’s rights continue to enjoy support from several corners of the American political landscape. In modern contexts, pro-squatter activists tend to be anti-capitalists who seek to use adverse possession as a means of promoting “equity” and punishing property owners viewed as an oppressive rentier class. These activists know these squatters have no true claim to the property under traditional definitions of squatter’s rights. This is clear in the modern world where ownership of real property involves multiple layers of documentation. 

In most cases, modern use of squatter’s rights amounts to nothing more than defrauding legitimate property owners and seizing their wealth.