You may have heard the term “squatting” and wondered whether its meaning is identical to “adverse possession.” A "squatter" is someone who stays on property without permission, and without paying any rent. Sometimes, though not always, squatters attempt to stay on that property long enough to establish "adverse possession." Adverse possession is a legal principle in all 50 states that allows trespassers to gain legal title to property under certain circumstances. However, there is a slight difference between the terms, as described in this article.
First, what exactly is adverse possession? This doctrine allows a trespasser to gain legal title to land upon meeting five primary criteria. First, the trespasser must have actual possession of the land in question. In other words, he or she must be physically present there and treat the land as if he or she owned it.
Second, the possession must be “open and notorious.” The trespasser cannot hide behind a tree every time the true owner uses the land; rather, the trespasser must be openly using the property for all the world to see.
Third, the possession must be exclusive. This simply means that the trespasser cannot establish title to the property if seven different unrelated people are also using it.
Fourth, the possession must be “hostile.” In most states, this means that the trespasser must occupy the land while knowing that it belongs to someone else.
Fifth and finally, the trespasser must occupy the land for a statutorily prescribed period. In some states, the number of years is as low as five, and in others it’s as high as 20.
These general criteria vary from state to state--particularly the length of time that the trespasser must stay on the land. Some states also have further requirements, like that the trespasser must have paid property taxes for the full statutory period. But generally, these five requirements are common to all states.
The subtle distinction between “squatting” and “adverse possession” has to do with the intent of the trespasser. A squatter implies someone who intentionally goes and squats on someone’s land. Sometimes, that person does so for a temporary period of time (e.g., seeking shelter during a housing crisis). Other times, that person squats with the explicit, premeditated purpose of acquiring title through adverse possession. In some states, this knowledge is required to establish the fourth element of hostility--the idea that the trespasser is purposely using someone else’s land.
In other states, however, the trespasser’s intent is totally irrelevant. In those states, if a trespasser stays on someone’s land--perhaps planting trees in their neighbor’s unused garden--for the statutory period in an actual, exclusive, and open and notorious manner, it does not matter if the trespasser mistakenly believed that the land actually belonged to him or her, and not to the true owner. Intent is irrelevant. Even a mistake about who owns the land will give the trespasser ownership, so long as all other criteria are met.
Outside of the courtroom, “squatting” may also have broader connotations, which you will see reflected in the media. The word suggests an individual who purposefully enters land that's in the middle of foreclosure or has been abandoned, perhaps sneakily waiting until the law gives him or her ownership. Often, the term “squatting” is used to disparage plaintiffs who attempt to use adverse possession laws to gain title to property for “free.”
Largely, however, journalists (and lawyers) tend to use the terms “squatting” and “adverse possession” fairly interchangeably to refer to the same legal doctrine.