How Do I Claim Adverse Possession in Delaware? A Guide to Squatter’s Rights in the State (2022)

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How Do I Claim Adverse Possession in Delaware? A Guide to Squatter’s Rights in the State (2022)

Have you ever wondered…How do I claim adverse possession? Do I have squatter’s rights?

In Delaware and every other state, squatters do have some limited legal rights. These rights are often called squatter’s rights. A squatter is a person who lives on someone’s land without permission or authorization. Usually, squatters enter the property without permission and then unlawfully occupy it, commonly called “squatting.” Squatter’s rights refer to the legal rights that protect people who unlawfully occupy a piece of property. Over time, it is possible that someone who unlawfully occupies a property may come to own that property through adverse possession.

Who is Considered a Squatter in Delaware?

Under Delaware law, a person occupying an unoccupied, abandoned, or foreclosed building or area without permission is considered a squatter. In other words, a squatter is someone who is living on a property they do not own, rent, or have a right to occupy. Squatting is relatively common in the United States, but it is still illegal. Many times, people get squatting confused with trespassing. 

 

Are Squatting and Trespassing the Same Thing?

Squatting and trespassing are not always the same type of activity. Trespassing is a criminal offense and someone who trespasses can face charges and criminal court. On the other hand, squatting is typically only civil. However, squatting may be treated as criminal behavior if the property owner has made it clear or established that the squatter or trespasser is unwelcome on the property.  

If a person makes an industrial property or unoccupied residential property more beautiful and worthy to live in, they may be able to avoid being prosecuted for trespassing. Examples of beautification include removing debris, planting flowers, or taking other maintenance or landscaping measures. However, trespassers and squatters may attempt to claim the right to remain on the property falsely. They may present law enforcement or the property owner with false documents or fraudulent papers to try to prove they are allowed to be on the property.

 

What Rights Do Squatters Have in Delaware?

Many people are surprised to learn that although squatting is illegal, squatters have legal rights to protect them. However, to be protected by squatters’ rights, the squatters must fulfill the requirements for adverse possession. If the squatters do not fulfill these requirements, they can be arrested as criminal trespassers.

 

Are Holdover Tenants Considered Squatters in Delaware?

When a person remains in a property after a lease or rental agreement has ended, he or she is called a holdover tenant. Holdover tenants do have some rights if they continue paying rent at the existing rate and on the existing terms. The landlord can choose whether or not to accept their ongoing payments without challenging their occupancy. However, if the holdover tenant receives a notice to quit from the landlord, they have to leave. If a holdover tenant does not leave, the landlord can sue the tenant for unlawful detainer. 

If they have already been asked to leave by the landlord, a landlord cannot claim adverse possession. At that point, they will be considered a criminal trespasser. If a landlord keeps accepting the holdover tenants’ rent and does not ask them to leave, they will be considered a tenant-at-will. And they are on the property at the landlord’s will or discretion and can be evicted or asked to leave at any time without notice in Delaware.

 

Delaware’s Adverse Possession Law

In some circumstances, a squatter can enter a property and dwell in the property without the landlord’s permission for enough time that they will eventually own the property. This legal theory is called adverse possession. In the state of Delaware, it takes 20 years of continuously occupying a property for the squatter to qualify to own the property through adverse possession. 

When a squatter claims adverse possession, they have the opportunity to own the property legally. After the claim to adverse possession has been made, the squatter is not a criminal trespasser and will have permission to remain on the property. A squatter must prove all of the elements of adverse possession when filing an adverse possession claim. There are five main legal elements that a squatter must prove to claim adverse possession, namely:

  • Hostile
  • Actual
  • Open and notorious
  • Exclusive
  • Continuous

 

Hostile

There are three main ways to prove the element of hostility when making an adverse possession claim. First, the squatter can prove that he is in simple occupation of the property. The squatter does not have to know that the property belongs to someone else. Their presence is hostile enough to the landlord’s interest. In other cases, the trespasser may be aware that they are trespassing and have no right to be there. Finally, it is possible that the trespasser made a good-faith mistake, believing they had a right to be there.

 

Actual Possession

To prove actual possession, the trespasser must be physically present and treat the property in question as if they were the owner.

 

Open and Notorious

The trespasser’s occupation needs to be evident to everybody, including any property owner who would make a reasonable effort to investigate their property. It needs to be open and notorious that a person is squatting on the property. The person dwelling in the occupancy cannot attempt to hide the fact that they are living there.

 

Exclusive Possession

The trespasser needs to have exclusive possession of the land. The trespasser cannot share the land with other tenants, strangers, or the property owner.

 

Continuous Possession

Continuous possession is one of the hardest elements of adverse possession to meet. The squatter needs to reside on the property for 20 years or more. They cannot leave the property and come back a month later.

 

Discuss Your Case With a Squatter’s Rights Attorney

Whether you are being accused of being a squatter, facing eviction, or are a landowner who has questions about your rights, the attorneys at Schwartz & Schwartz are here to help. Contact our experienced Delaware attorneys today to schedule your initial consultation and learn more about how we can protect you.

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