DISCLAIMER: This blog post is not intended to form an attorney-client relationship, and it should be used for informational purposes only, and it should not be construed, and is not intended to serve, as legal advice. The facts and circumstances of your life may affect how and whether to make particular decisions while seeking legal relief and/or remedies. It is very likely that seeking legal advice from a licensed attorney is your best option.
Got Squatters Acting Like Wise Guys? You Have Legal Options for Dealing with Them
If you have a violent or threatening squatter on your property (even if you are merely an authorized tenant and not the property owner) (for an introduction on squatters, and for more on who qualifies as a squatter, see last month’s post, available at https://www.matthewbecksteadlaw.com/6-steps-to-removing-your-squatters-in-nevada/), you may file an eviction action with your local justice court, such as the Las Vegas Justice Court, as long as you follow certain steps. Ideally, the squatter will scram when he or she understands that you are pursuing legal action. Realistically, this won’t always be the case. Although these steps might seem frustrating, they are probably designed to efficiently address the problem, rather than authorizing an immediate formal eviction action filed in court.
Before diving in, it is important to understand who qualifies as a violent or threatening squatter. For purposes of this article, a squatter is “violent or threatening” where he or she “[u]nlawfully holds and keeps the possession of any real property by force or threats of violence,” NRS 40.240(1)(a). If this is the case for you, document (by legal means only) the use of force and/or threats of violence and prepare a notice to surrender, which must be served upon each individual squatter. A person is a violent and/or threatening squatter even if he or she gained possession of the house without violence or threat and later becomes violent or threatening; there is no requirement that the squatter be violent the entire time in order for you to have legal authority to prepare and serve a notice to surrender.
The notice to surrender can be served by “[t]he owner of the real property, an authorized representative of the owner[,] or the occupant who is authorized by the owner to be in possession of the real property,” NRS 40.240(2). As discussed below, you may believe, as I do, that using a professional process server is the best way to serve documents. Notice, too, that the statute does not limit “force” to force against a person – it appears to include any and all force used to further the purpose of holding and keeping the residence. For example, if a squatter kicks the dog to show you she means business and will not leave the property quietly, that appears to qualify as the kind of force the law forbids, and you can begin the process of evicting the violent or threatening squatter. It’s worth repeating – you may not need to follow each of these steps; maybe your violent or threatening squatter(s) will get the message and leave sooner than later.
Step 1: Prepare the Notice to Surrender
The notice to surrender that you will serve on your violent and/or threatening squatter must comply with the law (if there is more than one violent and/or threatening squatter, you must prepare a notice of surrender for each individual, otherwise the court lacks jurisdiction to evict that person). To do so, the notice to surrender must do the following:
- Inform the squatter* who used force and/or threats of violence that he or she is guilty of forcible detainer (If you don’t know their names, I suggest using “Current Occupant” along with Jane and John Does and physical descriptions. For example, Current Occupant, Jane Doe #1 with the red hair and the dragon tattoo who appears to weigh 90 lbs.). NRS 40.240(2)(a);
- Give the squatter 4 judicial days to surrender your residence (It’s useful to think of judicial days as business days: no weekends or court holidays. For court holidays, check the Las Vegas Justice Court’s website – they’re pretty good about keeping their holiday information updated. General rule of thumb? If the post office is closed, the court is probably closed. Don’t forget Nevada Day, though! Or Family Day!). NRS 40.240(2)(b);
- Identify your local courthouse, which is based on where the property is, not necessarily where you live (for example, the Carson City Justice Court or the Henderson Township Justice Court). NRS 40.414(3)(a);
- Advise the squatter:
- Of his or her right to contest the matter by filing, before the court’s close of business on the fourth judicial day following service of the notice of surrender, an affidavit with the court that has jurisdiction over the matter stating the reasons why the unlawful or unauthorized occupant is not guilty of a forcible entry or forcible detainer.
- That if the court determines that the unlawful or unauthorized occupant is guilty of a forcible entry or forcible detainer, the court may issue a summary order for removal of the unlawful or unauthorized occupant, or an order providing for the nonadmittance of the unlawful or unauthorized occupant, directing the sheriff or constable of the county to remove the unlawful or unauthorized occupant within 24 hours after the sheriff’s or constable’s receipt of the order from the court.
- That, except as otherwise provided in in this paragraph, the owner of the real property, an authorized representative of the owner, or the occupant who is authorized by the owner of the real property to be in possession of the real property, shall provide safe storage of any personal property of the unlawful or unauthorized occupant which remains on the property. The owner, an authorized representative of the owner, or the occupant may dispose of any personal property of the unlawful or unauthorized occupant remaining on the real property after 14 calendar days from the execution of an order for removal of the unlawful or unauthorized occupant or the compliance of the unlawful or unauthorized occupant with the notice to surrender, whichever comes first. The unlawful or unauthorized occupant must pay the owner, authorized representative of the owner, or occupant for the reasonable and actual costs of inventory, moving, and storage of the personal property before the personal property will be released to the unlawful or unauthorized occupant.
Step 2: Serve the Notice to Surrender
Ok, now that you have your notice to surrender for each and every squatter, you must serve each and every squatter. Your best bet for serving a notice to surrender is to contact an authorized process server in your area. It makes life simpler, and these folks are more experienced than the average person when it comes to serving notices. If you are going to use self-help and serve it yourself, you do so at your own risk, but the law appears to allow this. See NRS 40.240(2). If you must insist, think it through and be smart and safe about it. It seems worth it, though, to pay a few dozen bucks to the local sheriff’s office to have them do it for you – why not let them handle it?
If you choose to proceed on your own, without the aid of a professional process server, Nevada law has specific requirements for serving a notice to surrender. See NRS 40.280(2). You can “deliver” a copy to your squatter(s) in person, “in the presence of a witness,” NRS 40.280(2)(a), but this is not your best option, because people are crazy.
If the violent and/or threatening squatter is “absent from the real property,” you still have the option and ability to serve the notice to surrender. To do so, you may leave a copy with another adult squatter who is living in your residence and, in addition to leaving a copy with an adult at the residence, you must mail a copy (I suggest doing this via certified mail (using certified mail with tracking at the United States Postal Service, for example)) to the address for your residence and address the notice to “Current Occupant.” See NRS 40.280(2)(b). I can hear you now: “But what if I have one of those locking, community mailboxes and my squatters don’t have access to the mail there?” Doesn’t matter. The law has specific requirements for serving a notice to surrender. So, if you can leave it with the nice squatter, the gray-bearded fellow who smiles at you as you walk by, this is one option at your disposal (just remember to mail a copy, too). Remember, discretion is the better part of valor! Be safe. Be smart. Use discretion. I truly feel that having a professional process server or your local sheriff serve the notice to surrender is the best option, for, perhaps, a dozen reasons, which I will not utter here (Yes, this is a Gandalf the Grey reference, in case you were wondering).
If there is nobody in sight when you arrive, you may post a copy of the notice to surrender on the door or other visible place, but you must also mail a copy (I suggest doing this via certified mail (using certified mail with tracking at the United States Postal Service, for example)) to the residence’s address and address the notice to “Current Occupant.” See NRS 40.280(2)(c).
Later on, if you must go to court in an eviction action pursuant to NRS 40.414, you are going to have to file proof that you served a notice to surrender. See NRS 40.280(4). Remember when I suggested that you to send your notice to surrender via certified mail? Because you kept your tracking number handy and you have your delivery confirmation (maybe you downloaded an authorized copy of the delivery confirmation from the mail carrier’s website and printed it), you can more easily demonstrate for the court that you’ve done well for yourself and followed the legal requirements for serving your notice to surrender. If you used your local sheriff or a private, licensed process server, make sure you keep a copy of their affidavit of service so you can show the court that you served the notice to surrender. See NRS 40.280(4). Attach any documents you have showing you served the notice to surrender to a certificate of service or affidavit, to be filed with the court.
Step 3: Proceed According to the Response from the Squatter(s)
How your violent and/or threatening squatter(s) proceed, after you’ve served the notice to surrender, determines what legal relief you may seek. Here is a discussion of the possible scenarios:
- If an individual squatter leaves by 5:00 p.m. on the fourth judicial day, never to come back and having ridden off into the sunset for good, you cannot file for eviction with the court as to that squatter. See NRS 40.414(4)(a). The key word in the statute is “surrender”; a squatter must “surrender the real property” to you, your agent, or authorized occupant. Once each and every squatter has “surrendered” the property, you may safely take possession of the property and secure it, including changing the locks. Whether a particular person has “surrendered” the real property can be a nuanced, detailed legal question that depends on the circumstances of each case. If you doubt that you can show the judge that a particular, individual squatter “surrendered” the real property, consult with an attorney before proceeding.
- If an individual squatter formally objects to the eviction proceedings, pursuant to NRS 40.414(4)(c), by 5:00 p.m. on the fourth judicial day, your only option is to file an eviction complaint pursuant to NRS 40.414(5). See NRS 40.414(4)(c). See also NRS 40.414(6)(b)-(d).
- If the individual squatter is still there, at the property, but he or she has not formally objected pursuant to NRS 40.414(4)(c), ask the court to find that you have presented sufficient evidence in your complaint “to demonstrate that a . . . forcible detainer has been committed” by that squatter. See NRS 40.414(6)(a). If the court makes this finding, it “must issue an order directing the sheriff or constable of the county to remove . . . [the individual squatter] within 24 hours after the sheriff’s or constable’s receipt of the order from the court,” NRS 40.414(6)(a). If the court issues such an order, make sure your local sheriff or constable receives a copy of the order. If you are unsure of how to proceed, you may ask your local court’s staff for guidance on how to ensure that the sheriff or constable receives a copy for service.
Step 4: Handle the Squatter’s Property According to the Law
Nevada law has specific instructions for handling a squatter’s leftover property. Fortunately for you, it also protects you against some civil and/or criminal liability if the court orders your squatters to leave the property, but you must follow the legal requirements set forth in NRS 40.414 (7). See generally NRS 40.414(7). I may cover these requirements at a later time, but it might just be easier for you to consult an attorney on how to proceed from here. This area gets a bit more complex and nuanced. If you’ve made it this far without a lawyer, congratulations – now might be the time to get one.
Handling Damages to Your Property
If you own the property or are the owner’s authorized representative, you may seek treble damages for “three times the amount at which actual damages are assessed,” NRS 40.240(3). In violent and/or threatening squatter cases, “actual damages” means damages to real property and personal property. NRS 40.240(3).
If you wish to pursue your squatters for damages, you should obtain credible evidence and provide it to the court. This may include photographs and witness testimony from a trustworthy person, for example.
No, I do not think trying to sell squatter property to offset any damage to your property is a good idea, and I’m not sure it’s allowed. See NRS 40.414(7).
Matthew B. Beckstead, Esq.**
* For purposes of this blog post, the term “squatter” means a person who forcibly detains real property pursuant to NRS 40.240(1)(a).
** Licensed in Nevada
© All Rights Reserved. License granted to the general public to reproduce and distribute to other members of the general public for informational purposes, subject to condition that this publication not be altered in any way, including author name and contact information.