Imagine owning your private property and having someone else find their way onto it without your consent the try to behave as if it belongs to them. Does that sound a bit farfetched?
Well, it's more common for property owners in the United States than you may think. It can be quite dangerous to own a vacant property, especially if it appears to be abandoned because you could stand to lose it to a squatter who tries to claim ownership via adverse possession laws.
You're probably wondering to yourself how this is even possible. People across the USA have managed to claim land this way, but it does require some very specific circumstances to be at play.
Fortunately, you've found yourself in the right place to avoid falling victim to this kind of thing. The information below is meant to help you understand how squatters' rights work in Hawaii, so you can avoid a situation where someone not only enters and resides on your property without lawful permission, but also attempts to claim it.
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Now, let’s dive in.
Defining a Squatter
Simply put, anybody who decides that they're going to enter a foreclosed, abandoned, or unoccupied property of their own volition with no express permission to enter such property from the owner is seen as a squatter.
As the person with the legal title for the property, it's essential to take a proactive approach to prevent this from happening.
Squatting vs. Trespassing
Considering that these people are entering a property with no permission, wouldn't they be committing the criminal offense of trespassing? Honestly, this is a legitimate question. The short answer is no, as weird as that may sound.
Certainly, if you've taken steps to make it clear that the trespassers aren't welcome (discussed below), then it is handled that way. Beyond that, squatting is generally treated as a civil matter.
In Hawaii, it's a little easier to deal with squatters since it is explicitly illegal. Therefore, if anyone should be found squatting in the state, the only chance at a favorable outcome for the person is their producing documents that indicate a right to be occupying the property.
Knowing this, some of them will attempt to falsify documents to be shown to either law enforcement or the actual property owner. Be advised that there is never a situation where it is legal to forge such documents.
While it may sound straightforward, you should be aware of a couple of caveats. First, it's possible to avoid being prosecuted for trespassing if the squatter beautified the property or if entry was the result of a verifiable emergency.
Additionally, while claiming adverse possession is possible, it can't be done against a property that is either already occupied or otherwise in use.
Adverse Possession Claim
In Hawaii, following 20 years of continuous possession, a squatter can claim ownership of the land. This, of course, would mean that the idea of prosecuting the person as a criminal trespasser goes out the window.
Before you start to panic, remember that 20 years is a long time and the person would need to go undisturbed. Additionally, four other stipulations need to be at play. Check out all five below.
Actual possession requires the squatter to be treating the property as if they were its owner, and it also requires them to be physically present. Usually, if there is documented evidence to suggest that the person beautified the property via landscaping, painting, removing debris, etc., that will suffice.
Continuous possession is the first piece of the puzzle discussed above. There must be an uninterrupted and consecutive period of 20 years that must elapse before an adverse possession claim is possible.
Should the squatter leave for a few months and return, the ability to do this goes out the window.
This clause necessitates that there is no sharing of the property with anyone else including the owner, tenants, or other squatters.
Open and Notorious Possession
Open and notorious possession means that the state of squatting should be obvious. Anyone, including the actual owner investigating reasonably, should be able to tell that someone is squatting on the property. No attempt should be made on the part of the trespasser to hide this.
Hostile, as used here, can have one of three established definitions. The first is simple occupation, which is nothing more than being present and occupying it, regardless of the knowledge that it belongs to someone or lack thereof.
Second, it could be a good-faith mistake. In this case, because of an invalid deed or other incorrect documentation, the squatter didn't know the real legal status of the property.
Finally, there is awareness of trespassing, which speaks to a situation where the person knows that they have no legal right to be on the property.
Hawaii Color of Title
Color of title speaks to a situation where the circumstances of property ownership are outside of the norm. This could also be a situation where one or more typical ownership documents are missing.
If an adverse possession claim is successful, a squatter can claim color of title, and this extends to good faith mistakes. Note, however, that the state of Hawaii has no provision that covers squatters with color of title.
This means that the 20 years of uninterrupted possession is still required to claim adverse possession.
Squatters vs. Holdover Tenants
Considering that a holdover tenant/tenant at sufferance chooses to remain on a property after an expired lease, these people are lumped in with squatters.
The situation here is a little different. In this case, these people must carry on paying rent based on the terms of the lease that would have been in place, which the landlord can then choose to accept, disregarding the property's legal status.
Note, however, that if the landlord does go this route. It makes the person a "tenant at will," meaning they can be evicted without notice.
Property owners can also choose to issue a notice to quit instead of accepting the rent. Should a tenant not leave, an unlawful detainer lawsuit may be on the horizon. Note that adverse possession laws do not allow holdover tenants to make any claims after having been told to leave since they would've already entered trespasser territory.
Your best defense against squatters is to be as proactive as possible with your property. If you think about the continuous possession clause, for example, imagine the circumstances under which someone could fly under the radar for 20 years before they claim adverse possession.
To prevent that from being the situation with the property you've invested in and paid taxes for, here are some steps:
- Visit your property regularly. There's a lot of information you can gain with a simple visual inspection.
- Pay taxes for your property promptly. Property taxes help with the documentation that proves that you are the rightful owner of the property.
- Ensure that there are "No Trespassing" signs present. A squatter will have a difficult time to claim adverse possession if it was clear that the person was unwelcome on your property. These signs are especially essential in cases where the property is unoccupied.
- Take action against squatters quickly. If you find that a squatter is living on your land, serve a written notice immediately. Again, this makes it clear that the person isn't welcome, which means that an adverse possession claim would become very hard to pull off.
In Hawaii, your first step should always be to serve an eviction notice to squatters, and this can be done for a few reasons with different timelines attached.
First, there's the end of lease/no lease of lack of lease type:
- 45-day notice to quit for a month-to-month tenancy
- 10-day notice to quit for shorter tenancies
Next, notice may be given where there is illegal activity:
- 24-hour notice to quit for common nuisance offenses
- Five-day notice to quit for damage or irredeemable harm
- 10-day notice to quit for any other illegal activities
Finally, there's the non-payment of rent notice, which is a 15-day notice to pay.
Realistically, the legal process can take weeks, but once you have made your intentions clear, adverse possession is likely off the table, and things will likely go in your favor.
Once the eviction is granted, a sheriff or other appropriate law enforcement official delivers a Writ of Possession to the squatter.
A grace period is granted here, after which law enforcement is free to remove the squatter by force. Do not attempt self-eviction actions such as switching off utilities as this is illegal.
If the squatter leaves personal property behind, a notice must be sent to collect same within 15 days. After this timeline passes, the landlord is free to dispose of or sell the property.
Hiring An Attorney
Whenever you start going down the road of the legal process to deal with squatters, hiring an attorney is always recommended. Whether it's adverse possession laws or other legal precedents, lawyers that specialize in this area will be armed with the knowledge and strategies needed to help you get the best possible result.
Dealing with squatters and the possibility of adverse possession in Hawaii is never a pleasant experience. This is especially true since they are not required to pay property taxes for a time as they are in other states. Simply bear the proactive tips in mind, and you shouldn't have anything to be concerned about.
Apart from squatter concerns, you may need access to relevant forms as a landlord in Hawaii. Thankfully, you can get them all from DoorLoop here!
Is Squatting Illegal in Hawaii?
Yes. Unless the required documentation is provided, this is considered trespassing.
Does Hawaii Require Squatters to Pay Property Taxes?
No. Squatters need not pay property taxes in Hawaii.
How Can I Protect Myself from Squatters as a Property Owner?
Take proactive actions such as visiting your property regularly and putting up "No Trespassing" signs to make it clear that squatters are unwelcome. This should offer some protection from squatters and their adverse possession claims
Are Adverse Possession Claims Difficult to Fight?
Adverse possession is unlikely to work out for the squatter unless they meet five very specific requirements. Speak to an experienced attorney to get the facts and maximize your chances of keeping what's yours.