1. What Constitutes Unlawful Possession under New York Law
Trespass and adverse possession are not the same thing. A trespasser enters property without permission and has no legal claim to it; an adverse possessor occupies land openly for a statutory period and may eventually acquire legal title. New York Penal Law Section 140.05 defines criminal trespass, which applies when someone knowingly enters or remains on property without permission. The distinction matters because a property owner's remedies depend on which category the occupant falls into.
In practice, these cases are rarely as clean as the statute suggests. Someone may occupy a vacant building for weeks claiming they were invited by a previous tenant, or they may argue the property was abandoned. Courts evaluate the specific facts: whether locks were changed, whether utilities were on, and whether the person paid any rent or property taxes. These details determine whether the case proceeds as a criminal trespass, a civil eviction, or potentially an adverse possession claim.
Criminal Trespass Vs. Civil Eviction
Criminal trespass is a misdemeanor in New York when someone knowingly enters or remains on property knowing they have no right to do so. A property owner can file a police report and pursue criminal charges. However, criminal prosecution does not remove the occupant from the property; it only creates a record. Civil eviction through Housing Court or Supreme Court is the mechanism that actually removes the person. Many property owners mistakenly believe a criminal conviction will automatically result in eviction, but the two processes run separately.
The Adverse Possession Doctrine
New York recognizes adverse possession under Real Property Actions and Proceedings Law Section 213. To acquire title through adverse possession, an occupant must occupy the property continuously for 10 years in a manner that is open, notorious, exclusive, and hostile to the true owner's rights. Hostile does not mean aggressive; it means without the owner's permission. After 10 years of such occupation, the adverse possessor can file an action to establish title. This is a civil proceeding, not a criminal one, and the burden of proof is on the claimant.
2. Eviction Procedures in New York Courts
Removing an unauthorized occupant requires following strict court procedures. The process begins with service of a notice to quit, which gives the occupant a specific period (typically 3 to 30 days depending on the reason for eviction) to vacate. If the occupant does not leave, the property owner files an eviction action in Housing Court (for residential properties) or Supreme Court (for commercial or complex cases). The court issues a judgment and, if necessary, a warrant of eviction that allows the sheriff to physically remove the occupant.
From a practitioner's perspective, timing and proper documentation are everything. Property owners who delay or fail to serve notice correctly often find their cases dismissed and must start over. A single procedural error can add months to the process.
Housing Court Jurisdiction and Process
Housing Court in New York has jurisdiction over eviction cases involving residential properties. The court operates in all five boroughs and handles thousands of cases annually. Once an eviction petition is filed, the court schedules a hearing within a relatively short timeframe. The judge evaluates whether proper notice was served, whether the occupant has a legal right to remain, and whether the eviction is warranted. If the court rules in favor of the property owner, a judgment and warrant are issued. The actual removal is carried out by the city sheriff, not by the property owner or police.
3. Adverse Possession Claims and Defense Strategies
When an occupant has remained on property for several years, they may attempt to claim adverse possession rather than defend against eviction. This claim shifts the legal ground entirely. The occupant must prove all four elements: (1) open and notorious occupation, (2) exclusive possession, (3) continuous occupation for 10 years, and (4) hostile possession without the owner's permission. Courts scrutinize each element carefully. Interruptions in occupancy, payment of rent to the owner, or permission granted by the owner all defeat the claim.
| Element | What It Requires | Common Disputes |
| Open and Notorious | Visible, observable occupation; not hidden | Whether neighbors or the owner knew of occupancy |
| Exclusive Possession | Sole control; not shared with the owner | Whether the owner retained any access or rights |
| Continuous for 10 Years | Uninterrupted occupation for the full period | Gaps in occupancy, temporary absences, seasonal use |
| Hostile Without Permission | No license, lease, or owner consent | Whether occupancy was by invitation or assumed permission |
Property owners defending against adverse possession claims often argue that the occupant's presence was permissive or that the occupancy was interrupted. For example, if a property owner allowed someone to stay temporarily during a housing crisis, that permission defeats the hostile element even if the occupant later remained beyond the agreed period. Documenting any communication with the occupant, written notices to vacate, or evidence of the owner's continued assertion of rights strengthens the owner's position.
4. Criminal Liability and Trespass Enforcement
Beyond civil eviction, unauthorized possession can trigger criminal charges. New York Penal Law Section 140.05 makes criminal trespass a misdemeanor. A property owner can contact police and file a complaint. However, police response varies; officers may decline to intervene in what they perceive as a landlord-tenant dispute rather than a pure trespass. This is where the distinction between a tenant with a lease and a squatter becomes important. A person with a lease has legal possession rights; a squatter does not.
In a real case handled in Queens Criminal Court, a property owner discovered someone living in a vacant commercial space. The owner called police, but the occupant claimed a family member had given permission. The case proceeded through criminal court as a trespass charge, but without clear evidence that the family member lacked authority to grant permission, the charge was difficult to prove. Simultaneously, the owner filed a civil eviction, which moved faster and resulted in removal within months. The criminal case eventually was dismissed, but the civil action achieved the owner's goal.
Working with Law Enforcement
Police involvement in squatter situations is unpredictable. Some precincts treat trespass as a civil matter between landlord and tenant. Others will respond if the occupant is clearly a stranger with no relationship to the property. Property owners should document all evidence: photographs, utility records showing no authorization for the occupant, any communications with the occupant, and witness statements. When reporting to police, provide this documentation and clearly state that no permission was ever granted. Even if criminal charges do not proceed quickly, the police report creates an official record that supports the civil eviction.
5. Strategic Considerations for Property Owners
Early intervention is critical. The longer an occupant remains on the property, the stronger their potential adverse possession claim becomes, and the more difficult removal becomes. Property owners should act within the first few months of discovering unauthorized occupation. Consult with counsel to determine whether the situation involves criminal trespass, a civil eviction, or a potential adverse possession defense that requires different litigation strategies.
Consider whether the occupant may have a colorable claim to possession. If someone has occupied the property for five years openly, the adverse possession risk is significant. If occupancy is recent and clandestine, eviction is more straightforward. Documenting your ownership, your efforts to maintain the property, and your assertion of rights throughout the occupancy period all matter in court. Additionally, understand that drug possession charges may arise if the squatter is using the property for illegal activity, and that criminal and civil remedies may proceed in parallel. Finally, evaluate whether the occupant's underlying circumstances (homelessness, family emergency, mental health crisis) warrant a negotiated resolution rather than full litigation, as courts sometimes favor voluntary departure agreements over contested evictions.
11 Mar, 2026
