It’s an interesting question, and one that property owner’s don’t appear to be thinking much about. Can someone come onto your property and spend the night, uninvited, and then decide to stay? Can they just decide to receive mail at your place? When does the law differentiate between trespass and squatting? When does squatting become a tenancy? Where does the line get drawn between calling the cops and filing an eviction notice? Asked by my friends at ezLandlordForms.com, I’ve decided to investigate what is happening, at least in Illinois. Here is what I found.
In Illinois, when someone enters real property without authorization they can be found guilty of criminal trespass to real property. For the actual Illinois legal code, see, 720 ILCS 5/21-3, et seq, but in lay terms, if a person were to enter and remain upon real estate without authority or permission, that is criminal trespass. It is not a requirement that the landlord or owner have to actually “say” that it’s illegal or without authority, but there are instances where, if someone stays after being notified that they are unwelcome, that the crime of criminal trespass will be found. There is a part of the law that makes mention of falsely claiming a right to be there, such as presenting false or fraudulent papers to an owner of real estate. Also, Illinois law mentions that access does not have to be just on foot, and that access can be made by use of a motor vehicle of sorts – which would apply to a “private road” for example. While your state may be different and it’s best to check with your local municipality, these concepts are usually very common across the country.
One interesting exception to the rule here in Illinois (and it may be popular in other states as well), is that if a person in Illinois “beautifies unoccupied and abandoned residential and industrial properties located in any municipality”. See, 720 ILCS 5/21-3(d), et seq. Basically, in Illinois, if you plant flowers or remove debris (adding in a few other technicalities), one could avoid prosecution for trespass. That is interesting – and it’s something you may be interested in. Another exception that is probably foreseeable is in the case of emergency. In that situation, a person who accessed property without authorization or permission (provided there is a bona fide emergency) may be exempt from trespass. Also in Illinois, in the case of Williams v. Nagel, the Illinois Supreme Court found that the owners of an apartment complex could bar certain individuals from the property, even guests of tenants, and that prosecution of claims of criminal trespass in those situations where persons were barred, was not improper. 162 Ill.2d 542 (Ill. 1994). There, in the situation where the tenant’s guests had been barred, if the management company elected to bar the guest, and the tenant extended an invitation to the guest to come onto the property, there could be an arrest for criminal trespass. The kicker there, was that the lease in question gave the landlord the right to bar people from the premises. What is the lesson to be learned for our landlords and even our tenant readers? Including language in your lease relating to management discretion to bar access to tenants’ invited guests may give the landlord some very specific rights. Check in your local jurisdiction to be sure, since there is some legal authority in Illinois and likely in other jurisdictions, that provides that a person who is on property through the express invitation of a tenant is not a trespasser.
But what about squatting? Does the law mention squatters? In Illinois, I could not find any law that directly mentioned it. That must mean, for the moment, that the criminal trespass law would apply to trespass in the case where there was no authority given by the owner or manager. A property owner could invoke the law after one night, one week or one month. However, it is important to keep in mind that there are legal principles in place that do give people rights – such as the concept of adverse possession, and situations where written or oral leases may apply. Here in our great Midwestern state, there exists a Forcible Entry and Detainer Act, which is essentially an eviction law. That act is usually a landlord’s exclusive remedy for evictions. The key to this being applicable at all though – is that there must first exist a “landlord/tenant” relationship. In situations where the eviction laws are arguably the path on which to travel, because there is a landlord-tenant relationship somewhere in the mix, then there, a landlord would not normally use a criminal law to enforce rights or settle disputes.
One example of this was in the Illinois case of the City of Quincy v. Daniels, 246 Ill.App.3d 792 (4th Dist. 1993). There, a tenant’s mother who was occupying an apartment at her daughter’s request but in violation of a lease, was initially convicted of criminal trespass. After an appeal, the appellate court found that the only way for the landlord to have removed the mother, was to have evicted her under the statute. One way for you all to think about this distinction then, is to try to determine if someone is living on the property, like the mother in Quincy v. Daniels, or visiting, as in the Williams v. Nagel case. These differences are important.
But what if you still have questions? What is the difference between squatting and trespass? Squatting can be defined as “one who finds empty or vacant or abandoned property and who moves in and resides upon it, for either a short or long term.” The difference in the law is that trespass is usually considered a criminal matter, while squatting and landlord-tenant matters are usually civil in nature. Believe me though – it matters not whether the penalty is civil or criminal in nature, because a violation of one law is just as bad and can be as costly (if not more) than another. In general, what I have found is that if someone is squatting and claiming to live on the property, the safer method of removing them (one that avoids a police officer refusing to arrest or require them to move) is to file an eviction action. One must keep in mind that such a civil action requires personal (in-hand) service of all relevant papers, but it would no doubt, work in nearly any jurisdiction to secure rights. There have likely been plenty of courts in a criminal matter that would ultimately refuse to impose a sentence against someone claiming a property right who was a squatter; however, conversely, I doubt there are many courts that would ignore a landlord’s rights as against one, refusing to allow a case because the landlord should have claimed there was a trespass. When in doubt, evict rather than convict, and consider contacting an attorney for up-to-date legal advice.
Alisa M. Levin, Esq. has been providing professional legal services to lenders, landlords, developers, investors, managers and other business professionals for over 10 years. Her website can be viewed at
http://chicagolawsource.net.