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does new york state have squatters rights on home possession

Customer Question
if the owner pays the...
does new york state have squatters rights on home possession if the owner pays the mortgage and bills but is not living in the home. i provide for my son his girl and child but do not reside in the home .  (they have threatened to call the police on two ocasions to make me leave my own property) can they make me leave  my own home or claim rights to my property after a time . I am on the property several times a week but what kind of proof do i have other than paying the bills ? they do not pay any rent only their own cable bill . they say i have to give them 30 days notice for them to move . I am concerned for my son and my granddaughter ( and she, his girlfriend, is pregnant again ) but i do not want to loose my house .
Submitted: 6 years ago.Category: Real Estate Law
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Answered in 39 minutes by:
7/19/2011
Real Estate Lawyer: PAX Attorney, Lawyer replied 6 years ago
PAX Attorney
PAX Attorney, Lawyer
Category: Real Estate Law
Satisfied Customers: 960
Experience: 16 years of legal experience in various aspects of the law. Licensed in multiple states.
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PAX Attorney :

Hello, I'm John and I am happy to help. If I am away, I am working with another customer or researching your answer. Are you in the home pursuant to a lease?

Customer :

I dont understand . I hold a mortgage to this property and let th e kids live there

PAX Attorney :

I'm trying to understand the situation. Are you concerned that the kids will assert squatters rights by your allowing them to live in the home free of charge?

Customer :

i just want them to get on thier feet but their family is growing and i cannot go on paying for everything . yes that is a good suggestion to chargr them rent but they barely pay anything now. and yes i am concerned about them persuing squatters rights

PAX Attorney :

The legal term for such rights is "adverse possession." In answer to your questions, no. If you give them permission to stay there it eliminates one of the key requirements for adverse possession. Does this make sense?

PAX Attorney :

Here is a link that explains this concept further.

Customer :

do i need any proof of this permission and do they have rthe right tyo ask or threaten with police to have me leave at times cause i dont live there

PAX Attorney :

yes, it would be ideal to have written proof. This proof might come from e-mails, written communications, etc.

Customer :

you did not answer the second half of the question... do they have the right to call the police and ask me to leave

PAX Attorney :

If you own the home and they are not living there pursuant to a lease which gives them exclusive possession of the home, they have no right to have you removed from the home.

Customer :

is that a catch 22 what if they have a lease and begin to pay rent

PAX Attorney :

Not necessarily. You can insert a provisions wherein you can have access to the home by giving them reasonable notice.

Customer :

ok and i have several texts to show cooperation of arrival

PAX Attorney :

Be careful about texts. It would be better to have some other form of written communication. When it comes to introducing texts into evidence, it is often difficult to authenticate the text messages. in other words, there is a high probability that a court will not allow the text messages into evidence.

PAX Attorney :

Does this make sense?

Customer :

thanks i do have a statement that i wrote explaining their responsibilities to pay part of the household bills that she wanted for ny state social services for proof of residense but it is not signed

PAX Attorney :

It might behoove you to try and get them to sign it.

Customer :

they needed this to qualify for food stamps .. or did they ..is she just trying to have landlord statements?

PAX Attorney :

This is a possibility.

Customer :

possibility of what to prove some sort of lease

PAX Attorney :

possibility of showing adverse possession. If you place something in writing that they are responsible for something and they don't do it, it could help establish some form of living in the home without possession.

PAX Attorney :

Does this make sense?

Customer :

I guess we cannot anticipate what she may do with this information . how do i protect myself . what do you meanshowing adverse posession how do i stand

PAX Attorney :

I don't think they have a serious chance of claiming adverse possession. Please read the above link. To protect yourself, either evict them now (by terminating the tenancy) or get them to enter into a written lease so that their legal position is clear.

PAX Attorney :

Make sense?

Customer :

so your saying if i continue to allow them even my own son live in my house they could have a claim of adverse possession and sorry i will check the link now

PAX Attorney :

It is certainly not as simple as that. The above link provides what your son will have to prove. Under these circumstances, it will be exceptionally difficult for him to claim the home by adverse possession.

Customer :

okbut he has been their for 10 years and what proof do they have their cable bill

PAX Attorney :

That is fine. If you have no written lease, you can still terminate their tenancy (occupancy of the home) even if they do not pay rent.

PAX Attorney :

I don't understand your question relating to the cable bill.

Customer :

thought that would show proof actual possession or occupancy item listed in the adverse possession along withn the years occupancy . what does it mean when it says hostile and under right of claim and exclusive

PAX Attorney :

Hostile essentially means that they are living there without your permission. Based on what you are telling me, they are living there with your permission so they likely cannot meet the hostile requirement.

PAX Attorney :

Exclusive means they are living there and exclusively in possession of the home. they would not be in exclusive possession if they moved out periodically wherein you took possession.

PAX Attorney :

Does this make sense?

Customer :

ok they are not leaving periodically and unless i move in am i not in possession

Customer :

ok they re not occasionly moving out and unless i move back in short of having belongings and a storage room now in the house am i not in possession ?

PAX Attorney :

You are not in possession; but, you allowed them to move in. they are living there with your permission. If you are concerned about this, evict them then only allow them back if they sign a lease.

Customer :

the original agreement was for them to have two rooms and use of the bath kit and living rm dosent that leave me with some possession or do i have to be there

PAX Attorney :

If they have just two rooms, the possession is not exclusive.

Customer :

ok now i just have to prove i gave them permission

PAX Attorney :

Generally speaking, yes.

Customer :

was expecting more of an answer like how do i do that

PAX Attorney :

Sorry. To prove this, you can use letters, e-mails, etc. You can also use witnesses that have personal knowledge of you giving them permission. Ideally, you would have a lease. I still think it is best to have them sign a lease; otherwise, evict them.

Customer :

ok but if they have a lease to .pay nothing that would be the permission . If they refuse to pay that would be hostile

PAX Attorney :

You can have a lease where they only pay utilities, etc.

PAX Attorney :

If they don't pay, they would be in breach of lease wherupon you would evict them.

PAX Attorney :

I need to take a break. If you have follow up questions or want more information, please post and I will answer when I return.

PAX Attorney :

Best regards,

PAX Attorney :

John

Customer :

so if i allow them to stay after breach of lease that would be living without permission and enter into the adverse possession situation. at this point i would have to evict them , however i've been told i could not evict them if they didnt have a lease, is that true sorry all of my questions are 2 and 3 part : if they dont have a lease they have nonexclusive usage to the house if they have a lease do they have exclusive use or just an agreement to pay a portion of household expenses and shared use of their space . if they have a lease and dont pay i would have to adjust the lease to keep it within thier means and out of the adverse situation-is this my safest bet? surely a lease is permission too live in the house but can it be partial so i dont give up possession . thank you I'll check back later

PAX Attorney :

If they are in breach of the lease and you do not do anything for a long period of time (i.e. 10years), then they might be deemed to have met the hostile requirment. In order to prevail on adverse possession, they would have to meet all the other requirements for 10 years.

PAX Attorney :

You can, in fact evict them even if you have no lease and even if they do not pay rent. You simply terminate their tenancy (possession) by serving proper written notice. If they still do not vacate after termination of the tenancy, you can go through the eviction process.

PAX Attorney :

If they have a lease, they are in possession with your permission. Permission negates one of the key elements needed to prevail on adverse possession.

PAX Attorney :

The decision to keep it within their means is yours. You can have a lease at a nominal amount--i.e. $1.00 per month.

PAX Attorney :

You can have a lease where you share possession, like in a roommate situation.

PAX Attorney :

Does this answer your questions.

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