Essay

Why Do Squatters Have Rights?

We have all heard the term “squatter’s rights” thrown out when someone is trying to justify their possession of some place.   Perhaps it was their favorite chair in the family room. Or maybe they were calling “shotgun” for the ride into town.  But the term “squatter’s rights” has siginificant meaning and a real historical purpose.  The legal name for “squatter’s rights” is adverse possession.  It allows a legal claim to someone who has occupied a property that was not initially theirs.  Think of it!  You own a piece of land and somehow it gets handed over to someone else.  How could this ever be right or just?  It sounds positively un-American!  Yet it is a principle of law in America and most other countries in the world.  Why?

The justification for squatter’s rights is two-fold.  One is to recognize the influence of time and the other is to recognize the influence of improvement.  The influence of time refers to the fact that proving ownership becomes more difficult over time.  Think of purchasing a house and the bank requiring the title search to go back to the founding of our country.  That would be a very expensive and useless exercise.  The influence of improvement refers to the idea that it is in society’s best interest for economic value to be created with the land.  In simple terms preference is given to someone who is willing to farm the land versus someone who allows it to fall to weed.  So squatter’s rights exist and they exist for the common good.

But this seems dangerous ground. If people risk losing their property they will be hesitant to invest.  Surely that isn’t in the public interest?  True.  That is why there are very steep hurdles that must be met on the part of the squatter.  The squatter must demonstrate possession, normally for 5-20 years based on various state laws.  The possession must also be shown to be adverse which means that the possession is both exclusive, not shared with the owner, and hostile, an invasion of the right of the legal title holder.  Without getting into all the specific criteria, the general idea is that the presence of the squatter is in full public view, over a period of time, and the squatter is making the place better, improving it.

If asked, I suspect that 99% of people would say that land should never be taken away from a land owner and given to someone else.  They would say that such action would be illegal.  Ownership is black and white.  Yet squatter’s do have rights.  Here we have a generally accepted legal concept that can upend legal ownership for the purpose of a greater good.  A good greater than the harm to the land owner losing title.  Not so black and white.

So now let me substitute the term “squatter” with the term “illegal immigrant”.  Certainly protecting our borders and having immigration law is in the public interest just as is perfecting title to property and property law.  But let’s consider a nation who for an extended period of time, like the neglectful landowner, fails to enforce these laws and protect its borders.  We now have multiple generations of people who entered the country illegally but who then lived for many years in full public view, being issued drivers licenses and other documents and paying taxes.  The vast majority of these people have helped improve the economy of the country through their labor or through building and owning businesses.  They have also helped improve our country by building families and raising children.

When do these people have a claim to being part of America?  When are they seen as part of what makes us strong?  When do we weigh the wrong we would do to these people by not creating a path to amnesty?  If the squatter has rights, why not the illegal immigrant we have allowed to live among us?  There is room to debate the hurdles to amnesty.  There is room to debate immigration policy and border security.  But if a person is hiding behind a simple “they broke the law” as reason to remove all illegal immigrants, they need to reconsider their position.  On this day that DACA is being rescinded, I call on each of us to let Congress know that we want these people, our neighbors, protected; not just the DREAMERS, but all of them.

For further reading:

Open and Notorious: Adverse Possession and Immigration Reform

Following in the Squatter’s Footsteps: An Illegal Immigrant’s Path to Citizenship