Squatters vs. Trespassers vs. Tenants

I get inquiries like this all the time:

“My parents passed away two years ago. My brother moved into the house about a year ago without my knowledge. He has not paid rent or utilities. I am trying to sell the house but can not do so with him there.“

“Can you help me with the legal steps to evict a squatter from my house.  I want to serve a 30-day eviction notice to four squatters who have never paid rent.  One squatter will not leave and has violent tendencies. I want to submit paperwork for an unlawful detainer lawsuit and obtain a court order for eviction I can get a Sheriff to serve.”

“My house has a squatter living inside. I called the police and they told me I need to do the eviction process to move them out.”

Of the three scenarios above, which is actually a squatter? Well, that depends.

Let’s first start with, What’s a squatter?

“A squatter is a person who settles in or occupies a piece of property with no legal claim to the property. A squatter lives on a property to which they have no title, right, or lease. A squatter may gain adverse possession of the property through involuntary transfer.”

Note the key word above: involuntary. One of the most common misconceptions about tenants versus squatters in California is how they gained possession of the property in the first place.

Three Questions

The key to knowing whether the occupant is a squatter, a trespasser, or a tenant is how the following questions are answered:

(1) How did they originally gain access to the property?

(2) How long have they been inside of the property?

(3) Is there a written rental agreement, and have they ever paid rent?

Let’s go into more detail about each of the three mentioned above.

(1) How did they originally gain access to the property?

  • Did they actually break into the property by breaking a window, breaking the front door, or forcing entry into the house? If this is the case, TIME IS OF THE ESSENCE. I can’t stress that enough. If someone breaks into your property, you must call the police immediately and before they can establish residency in order for the police to remove them for trespassing. This would need to happen within a day or two of them breaking in. If you say that you didn’t know that they broke in or when they broke in because the property was vacant and you don’t check it every day, that’s not going to be good enough. If they can prove they lived there (utilities in their name, their belongings are inside, or they are getting mail to the address) then in the eyes of the California law, you have a tenant. If you have a tenant, no you cannot start charging them rent right away, either. Honestly, accepting rent from them is the last thing you want to do because then they’ll have even more rights, and you’ll end up with a tenant that you haven’t qualified based on good credit, income, references, and you’ve opened an entirely different can of worms. 

In this scenario, you should be able to issue them a termination notice, but your ability to do so also depends on the following:

  • The type of property it is,
  • The city it’s located in, and
  • How long they’ve been in the property.
  • Did the original tenant move out, but let the “squatter” stay?

In this scenario, there are certain things you can do, depending on if there was a written rental agreement with the original tenant or not. If there is a local Just Cause Ordinance, such as the City of San Jose’s Tenant Protection Ordinance (TPO), which means you can give someone a termination notice for one specific reason out of a very short list of reasons to choose from, then you may be able to issue a notice based on breach of contract with the original tenant. If there’s isn’t a local ordinance, then your property may default to the Tenant Protection Act of 2019 (AB 1482) and a termination notice can be issued in compliance with one of the stated for-cause reasons within the law. If the property is not covered by a Just Cause ordinance or law, then a termination notice is sufficient.

  • Did they have permission to live there then stopped paying rent?

This is not a squatter. This is a tenant. Once someone has paid and you have accepted rent, even if they paid you with a check that you haven’t deposited or cashed yet, this is a tenant. It doesn’t make a difference if you have a written rental agreement or an oral rental agreement, once you accept rent, you have a tenant.

  • Did someone give them a key?

If you or a former tenant gave them a key or gave them permission to stay for even one night, then they have the right to remain in the property until they are evicted. I know, this sounds insane, but it’s true. Most people have the decency to leave when they’re told, but a lot of people won’t, especially family members, and even moreso, family members who are addicts. Once they have the right to stay, in the eyes of California law, they get to stay. The only saving grace here is if it’s fast, and you respond quickly, which means that they were only there one night, you never gave them a key, you didn’t take any money toward rent, they refuse to leave, and you call the police. It’s possible the police will remove the occupant because they have not established residency, but once a couple of days or a week has passed, the chances are high that law enforcement will tell you that you need an eviction. 

(2) How long have they been inside of the property?

To truly determine if an occupant is squatting, trespassing, or occupying as a tenant, you need to know how long they’ve been there. If they have been there longer than a few days, chances are that they converted from either a squatter or a trespasser to a tenant. Even if they broke into the property, if you do not do anything to get them out immediately after the break in, they will be considered a tenant. Once they can claim residency, as stated above, they have the right to be there under California law until they are evicted. 

A word of advice: If you have a vacant property, install security cameras on the exterior in order to deter trespassers, and to have record of the break-in, so you can respond quickly, report it to the police, and get the trespasser out immediately.

That said, most of the time, a trespasser or squatter is someone you know, which means there’s usually a he-said, she-said agreement that’s tied to it, and the police department doesn’t want to get involved with it, so you need an eviction, so a court of law can decide.

(3) Is there a written rental agreement, have they ever paid rent.

If there is a written rental agreement with said squatter, then this person is not a squatter. It is a tenant. If this person has ever paid a dime of rent or anything toward the rent (utilities, security deposit, yard maintenance, etc.), then this is a tenant.

Plain and simple.

But what about California Penal Code 602.3 that refers to lodgers in owner-occupied dwellings?

Yes, I’m well aware of section 602.3 (a) of the California Penal Code, which states that the owner can simply serve a notice and remove a lodger from a property that the owner lives in with said lodger by serving a notice, then calling the police to have the lodger arrested. In this scenario, the Sheriff simply won’t evict. If you call the police department to remove a lodger, they will tell you to call the Sheriff, the Sheriff will tell you that you need a writ, and the court clerk will tell you that you need an eviction. But before you can start an eviction, you need to issue a certain type of notice that takes into account the details of your scenario. If you do issue this notice, then the eviction process is the only way to follow through with an eviction, and you can’t go straight to law enforcement to remove a lodger who has permission to be there. So this brings you back to the reason that citing California Penal Code 602.3 simply will not be enforced in California.

Don’t they owe you something? Anything?

Further, no matter what you do, DO NOT ACCEPT ANY MONETARY PAYMENTS OF ANY KIND from someone you have not authorized, approved as a tenant. The “squatters” already have more rights than you do to remain in your property longer than you want them to, and accepting rent will cause significant delays. 

What now?

While determining whether or not an occupant is authorized or unauthorized, a tenant, a squatter, or a trespasser, there are multiple scenarios that need to be considered before taking legal action. Don’t take legal matters into your own hands, which will end up wasting your time, money, and the headache of trying to decipher which scenario is best for you. Hire a professional to get the job done correctly the first time. Schedule a consultation with our staff today:

Hi, I’m Anne-Michelle! How can I help?

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MEET YOUR EVICTION SPECIALIST

Hi there, I'm Anne-Michelle Frances, founder of Blueprint Evictions.

With over 18 years of experience as a Senior Paralegal working alongside my father, Daniel T. Paris, a seasoned Bay Area eviction attorney, I gained invaluable insights into the complexities of landlord-tenant law. When he retired in 2023, I embarked on a mission to empower landlords like you to navigate California’s stringent tenant-favored laws with confidence. At Blueprint Evictions, we’re dedicated to providing landlords with the tools and resources they need to effectively manage their properties and protect their investments while remaining in compliance with California law. Click below to learn more about my journey and how Blueprint Evictions can support you.

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Hi, I’m Anne-Michelle! How can I help?