Senate takes a stand on squatting

When the House passed House Bill 1400, the bill prevented municipalities from requiring more than one residential parking space per housing unit in their local zoning regulations.

Requiring 1.5 or two parking spaces per unit, as many zoning districts do, is often a prohibitive hurdle for housing developers and owners of multifamily properties to overcome, as every duplex, three-family, and four-family structure in the zone needs to have enough land set aside within its lot for as many as four, six, and eight parking spaces, respectively. As a result, many property owners and developers may determine the juice isn’t worth the squeeze and decide against building a multifamily structure that must accommodate all those spaces.

Originally, HB 1400 would have restored to property owners the authority to decide for themselves whether a unit needs more than one parking space on site. As amended by the Senate, however, the bill allows two parking spaces per unit, double the original bill’s limit.

But while the Senate was less ambitious in protecting Granite Staters’ property rights with respect to parking requirements, the upper body added a separate property protection, this one for victims of squatting.

The Senate’s version of HB 1400 first defines “tenant,” “subtenant,” “implied tenant,” and “non-rental owner” as each is most commonly understood. Then, the bill does away with what are commonly known as “squatter’s rights.”

“No person or legal entity, that is not a tenant, subtenant, or implied tenant, as defined in RSA 540-A:1, II, shall occupy residential real estate without permission of the owner, landlord, or their agent,” HB 1400 states. In other words, unless you have the express permission of the property owner through a written agreement or otherwise, then you do not have a right to live on their property.

And that includes being able to claim squatter’s rights.

As defined by Pacific Legal Foundation (PLF), “‘Squatting’ describes moving into a property without any legal claim or title to the property. Such a person is ‘squatting’—living on—someone else’s property without consent from the owner.”

Although the terms are often used interchangeably, squatting in the modern sense is not the same thing as what is traditionally called adverse possession. Under common law, adverse possession occurs when someone wants to lay claim to a property that appears to be abandoned, per PLF. To do so, the person would normally have to show clear possession of the property, start paying property taxes, and get approval from a court to be the new owner of the property.

This common-law understanding of adverse possession would not protect present-day squatting for the simple reason that the properties being occupied by trespassers are not abandoned, let alone the fact that squatters aren’t paying property taxes or going before judges.

The issue of squatting came to a head recently in the state of New York after a series of squatting incidents, including one in which the actual homeowner was put under arrest, led state lawmakers to strip squatters of any tenant protections.

Before these changes, unwelcome guests in New York City could claim squatter’s rights after occupying someone else’s property for 30 days, thereby making it very difficult for the owner to kick them out.

While nothing that extreme has been reported in New Hampshire, squatters can make a legal claim of adverse possession of a property provided they’ve occupied the premises for 20 consecutive years under current state law (RSA 508:2).

HB 1400 would effectively nullify any claim to squatter’s rights in the Granite State if the squatter doesn’t have the homeowner’s permission to live there.

Additionally, HB 1400 would provide enhanced processes for landlords, tenants and non-rental owners to seek relief for unauthorized occupancies on their property. Anyone who claims to be a subtenant or an implied tenant would bear the burden of proof for such a claim.

Laws upholding squatter’s rights—the rights of unwelcome guests to stake a claim on a property they’ve occupied for some amount of time without the owner’s permission—are antithetical to a respect for private property rights. And securing private property rights is paramount to a free society predicated on individual rights and liberties.

The right to private property necessarily includes the right to control who occupies that land. The Senate’s amendments to HB 1400 would make it clear that that power belongs to Granite State property owners.

The House did not concur with the Senate’s changes, so HB 1400 has been sent to a committee of conference to hammer out the differences between the two bodies.