Some New York legislators took a victory lap last week after they passed a budget bill with language aimed at addressing a rash of illegal squatting in the Empire State. Yet it may not affect the status quo. The new provision distinguishes squatters from non-squatters. But the law already was clear on that distinction.

The legislative fix is aimed at a misperception of law that became conventional wisdom: that squatters have rights after occupying property for more than 30 days. But New York courts have never been confused on this issue. Courts in the past ably distinguished between squatters—who have no possession rights, and never had permission to be there—and tenants with valid possessory interests in property.

The recent legal misperception flows from Section 711 of the Real Property Actions and Proceedings Law (RPAPL) and Section 26-521 of the New York City Administrative Code. The key terms under these laws are tenant and lawful occupant.

Section 711 of the RPAPL requires property owners to start a special proceeding in state court to remove tenants or lawful occupants from their properties. It also outlines the grounds under which such a special proceeding may be brought.

Section 711 also expands the definition of tenant to include rooming house occupants and hotel residents who have possessed one or more rooms for 30 straight days or longer. A squatter is neither a tenant nor a lawful occupant under state law.

It is unlawful under state law and the New York City code to evict without a court-ordered eviction warrant or a government vacate order a person who has lawfully occupied the dwelling unit for 30 straight days or longer or entered a lease for the dwelling unit. A person found to have intentionally violated the law is guilty of a Class A misdemeanor and can be civilly liable for a monetary penalty between $1,000 and $10,000.

It is not unlawful for property owners to evict unlawful occupants— squatters—without a court-ordered eviction warrant or government vacate order. This is known as self-help eviction, typically where the landlord locks the squatter out by changing the locks. A property owner using self-help can be helped by police arresting the squatters for trespassing or otherwise persuading them to leave without violence or threatening their personal safety.

A property owner may also obtain court authorization to evict a squatter. Section 713 of the RPAPL provides a property owner access to a summary proceeding against a squatter after a serving a 10-day notice to quit (rather than 30 days for tenants or lawful occupants).

The other timing provisions for proceedings under the RPAPL are the same. After the notice to quit expires the property owner can serve papers starting the proceeding on the squatter with no fewer than 10 and no more than 17 days’ notice of the court date. The squatter then may obtain an automatic adjournment on request. In recent years the Legislature expanded the minimum notice time from five to 10 days and added the automatic adjournment provision. The initial adjournment changed from not more than 10 days to no less than 14 days. These changes to favor tenants extended to squatters.

A prudent property owner may seek an eviction warrant for a squatter under Section 713 to avoid the time and expense of being hauled into court by a squatter alleging an unlawful eviction. New York discourages undue intimidation or violence in ejecting persons from real property with treble damages under its forcible entry and detainer law. Yet squatters may be evicted without a proceeding under Section 713.

The First Department Appellate Division made this clear 30 years ago in Paulino v. Wright. There, homeless individuals sued New York City alleging an unlawful self-help eviction. The plaintiffs had moved into an abandoned City-owned building and made repairs and improvements. NYPD and the City then evicted them without an eviction warrant obtained under Section 713.

The appellate court repeated that Section 713 “merely permits a special proceeding as an additional means of effectuating the removal of nontenants, but it does not replace an owner’s common-law right to oust an interloper without legal process” (emphasis in original). And the court made clear interlopers who may be evicted without legal process include squatters.

The new provision (Part II of the ELFA bill) that makes it certain in statute that squatters are not tenants may reduce confusion about the rights of persons who occupy property for more than 30 days. And such clarification may give property owners greater confidence to enlist assistance from the police in self-help evictions, but it didn’t change the rights they already had prior to this month.

Senator Mario Mattera and Assemblyman Steve Stern have separately introduced a bill proposing a formal complaint procedure for police to remove unlawful occupants that also could help property owners. A property owner must make certain statements under penalty of perjury establishing ownership and the occupier’s status as a squatter. The proposed bill still allows a property owner to be held liable for wrongful eviction. Its merits—allowing property owners to evict squatters with police assistance without needing a court proceeding—may be worth a debate in the Legislature.

Under current law, there may be circumstances that are too complicated for the police to be willing to help without an eviction warrant or vacate order. Fake documents and persons scammed into thinking they are legitimate tenants or subletters could make the police hesitant to make arrests. Or a property owner may want to err on the side of caution to avoid a lawsuit for treble damages for wrongful eviction. But the newly added definition of squatter does nothing to minimize the expense and delay of pursuing a court proceeding that frustrates property owners and may encourage squatters.

Courts could limit delay in squatter cases by how they manage their dockets under the current law, or the Legislature could pass a law providing an expedited procedure for squatter proceedings. For now, however, property owners unwilling or unable to use self-help must endure the same expenses and delays in eviction proceedings that a clearer definition of squatting does not help.

About the Author

Cam Macdonald

Cameron J. “Cam” Macdonald is an Adjunct Fellow with the Empire Center and Executive Director and General Counsel for the Government Justice Center.

Read more by Cam Macdonald

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