What is Squatter Rights and can they be used to keep me from moving?
Full Question:
Answer:
Generally, a tenant under a lease has permission of the land owner to possess the premises during the lease term, so that time cannot be used to claim adverse possession. Adverse possession is a means by which someone may acquire title to the land of another through certain acts over a defined period of time. Such acts must continue uninterrupted for the time period defined by state laws, which vary by state, and is either 7 (under color of title claim, such as a defective deed) or 20 years in NC, depending whether the claim is under color of title or not. In general, the acts of possession must be overt, hostile, exclusive, uninterrupted, and under a claim of right, etc., so as to give the owner or others claiming entitlement to possession notice and an opportunity to counter the adverse possession. Payment of real property taxes and making improvements (such as paving or fencing) for the statutory period are evidence of adverse possession but cannot be used by a person with no claim to title other than possession. Certain public property is not subject to adverse possession. Some states require that the possession be "under color of title," or that the person must believe that he has the right to possess it and has some form of document or is relying on some fact that while not actually conveying title, appears to do so. Eventually, the possessor is required to file for title with the county recorder. The actual owner then has a limited amount of time in which to challenge the newcomer's title. Essentially, the owner's only argument is to claim some sort of disability; such as age, mental instability, or imprisonment. The owner is not required to do much in order to stop the possessor from acquiring title; merely sending the possessor a note granting permission to be there will usually suffice. Various rules exist regarding the continuousness of the possession and the ability to "tack" various periods of possession together in order to satisfy the time of possession requirement.
It is said that continued possession by the landowner after a judicial sale is not adverse to the purchaser and that he is merely a tenant at sufferance of the purchaser and that therefore the statute would not begin to run until conclusion of the foreclosure proceedings. Nevertheless an adverse possession may be established by open and hostile acts of the owner asserting a title of his own.
The general rule is that in the absence of a contrary lease provision, the death of tenant or landlord does not terminate the lease and does not terminate responsibilities under the lease. Therefore, at the death of the landlord, the tenant continues in the same relationship to the landlord's successor. (Corpus Juris 2nd, Landlord and Tenant, Sec. 22d). If the property is sold, the new landlord has to honor the present lease, unless the lease terms provide otherwise.
A tenant may only be removed through the eviction process in court. The tenant must be served with the Summons and Complaint by the Sheriff’s Office, either personally or by posting. The Summons will state the date, time, and place for the court hearing. The tenant may have defenses to an eviction action depending upon which basis for eviction the landlord sets out in the Complaint. The tenant may also file written counterclaims against the landlord, such as asking for money damages if the landlord attempted to evict the tenant illegally and damaged him in some way.
Either party has ten days in which to appeal the magistrate’s decision to District Court for a new trial. During this ten-day appeal period, the tenant cannot be evicted. If the tenant properly appeals the judgment to District Court and pays the rent when due to the Clerk of Superior Court, then he can retain possession of the premises. The tenant may also be required to pay any undisputed past-due rent to the Clerk of Court, unless he files the appeal as an indigent.
If the eviction is based upon nonpayment of rent and the judgment is entered more than five working days before the day when the next rent payment is due under the lease, then the tenant must also pay the pro-rated rent for that time period to stay execution of the magistrate’s judgment for possession pending trial.
If the tenant does not appeal the magistrate’s judgment within ten days or loses on appeal, then the court may issue a Writ of Possession of Real Property. The writ directs the Sheriff to physically remove the tenant and his personal property from the premises. The Sheriff, not the landlord, is the only one who can remove the tenant and/or his personal property from the rental premises. The landlord cannot force the tenant during the eviction process
Unfortunately, this service cannot provide phone consultation. I am prohibited from giving legal advice, as this service provides information of a general legal nature. I suggest you contact a local attorney who can review the facts and documents involved.
The following is a NC statute:
§ 42-14. Notice to quit in certain tenancies.
A tenancy from year to year may be terminated by a notice to quit given
one month or more before the end of the current year of the tenancy; a
tenancy from month to month by a like notice of seven days; a tenancy
from week to week, of two days. Provided, however, where the tenancy
involves only the rental of a space for a manufactured home as defined in
G.S. 143-143.9(6), a notice to quit must be given at least 60 days before
the end of the current rental period, regardless of the term of the
tenancy.