Uninvited: Squatters vs. Trespassers

tresspassingProperty owners and landlords may not think much about trespassing and squatters until it is actually happening. As the weather gets colder, and people may begin looking for a warm place to reside for the winter, the following questions may arise:

  1. Can someone come onto your property and spend the night uninvited, and decide to stay?
  2. When does the law differentiate between trespass and squatting?
  3. Where does the line get drawn between calling the cops and filing an eviction notice?

Knowing the difference between squatting and trespassing can help navigate this issue. According to Alisa M. Levan of Chicagolawsource.net, the difference is; trespassing is usually considered a criminal matter, while squatting and landlord-tenant matters are usually civil in nature.

Here are a few things to consider:

  • It is not a requirement that the landlord or owner need to actually “say” that it’s illegal to be there, there are instances where, if someone stays after being asked to leave, the crime of criminal trespass may be the result.
  • There is a part of the law that mentions falsely claiming a right to be there, for example, presenting false or fraudulent papers to an owner of the property.

Exceptions to the rule:

  • If a person beautifies unoccupied and abandoned residential or industrial property by planting flowers or removing debris (some technicalities here) one could possibly avoid prosecution for trespass.
  • In the case of a legitimate emergency, a person who accessed property without authorization or permission may be exempt from trespassing.

Squatting can be defined as; one who finds empty, vacant or abandoned property and proceeds to reside within, without authority given by the owner or manager.  The criminal trespass law would apply in this case.  A property owner or landlord could invoke the law after one night, one week or one month.  However, it is important to keep in mind that there are legal principles in place that do give people rights.

“There exists a Forcible Entry and Detainer Act, which is essentially an eviction law. That act is usually a landlord’s exclusive remedy for evictions. The key to this act being applicable, is that there must first exist a “landlord/tenant” relationship. In situations like this, that relationship has not been established. However, a landlord would not normally use a criminal law to enforce rights or settle disputes.”

Both squatting and trespassing are considered criminal behavior.
In general, if someone is claiming to live on the property, the safest method of removing them (one that avoids a police officer refusing to arrest or require them to move) is to file an eviction action.  When in doubt, evict rather than convict, and consider contacting an attorney for up-to-date legal advice.

While your state may have different laws, these concepts are usually very common across the country.

Article based on Illinois Laws according to M. Levin. Her website can be viewed at http://chicagolawsource.net.

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