Note: I have republished this article at http://bobhurt.blogspot.
Executive Summary
This article defines and explains adverse possession in the context of foreclosures. Adverse Possession occurs when a disseisor (adverse possessor) "squats"on someone else's land. Originally intended to protect people who had occupied and improved on land for many years, opportunists might also seek to use it to capture real estate neglected because of the glut of foreclosed properties.
This article defines and explains adverse possession in the context of foreclosures. Adverse Possession occurs when a disseisor (adverse possessor) "squats"on someone else's land. Originally intended to protect people who had occupied and improved on land for many years, opportunists might also seek to use it to capture real estate neglected because of the glut of foreclosed properties.
Legislators have not intended this to let people simply steal others' property. Rather, they meant to prevents a long-lost claimant or heir from tossing a disseisor off the land after many years of living or working on it and improving it.
Adverse possession operates as a double edged sword. One may commit trespass, a crime, through adverse possession. Adverse possession can become a risky business. One should consult an attorney who specializes in real estate Title law before undertaking it.
The Meaning of Adverse Possession
The dictionary provides these definitions:
- Possession - exercising beneficial dominion. In practical application that means remaining physically or notoriously present, maintaining the property, and taking care that it does not become an eyesore or a danger to others.
- Adverse possession - exercising unpermitted (hostile) possession of a property belonging to someone else.
A disseisor must act like an exclusive owner of the property, not someone sharing it with a community of other users (unless the whole community functions as the disseisor). The disseisor must possess the property without permission of the real owner for the period of time required by statute, seven years in Florida.
The disseisor must make the possession "open, notorious, hostile, and continuous" - blatantly occupy the property, pay property taxes and improvement and assessment liens, pay homeowner association (HOA) dues, comply with HOA rules, and maintain the property in order to demonstrate adverse "possession." A court might incline favorably to the disseisor who has regularly attended community and HOA meetings, and who shows the address on driver license, voter registration, utility bills, and other documents. Adverse Possession also means exercising continuous possession for the statutory period, typically from 20 to 5 years - 7 in Florida.
Examples of adverse possession include
The disseisor must make the possession "open, notorious, hostile, and continuous" - blatantly occupy the property, pay property taxes and improvement and assessment liens, pay homeowner association (HOA) dues, comply with HOA rules, and maintain the property in order to demonstrate adverse "possession." A court might incline favorably to the disseisor who has regularly attended community and HOA meetings, and who shows the address on driver license, voter registration, utility bills, and other documents. Adverse Possession also means exercising continuous possession for the statutory period, typically from 20 to 5 years - 7 in Florida.
Examples of adverse possession include
- Building and continuously using a shed on a neighbor's property and maintaining ingress/egress along with the shed. One might take legal title if the neighbor does not lodge a timely protest.
- Drilling or mining under another's land, such as through an entry into the ground on one's own land.
- Squatting in someone else's abandoned house - filing a notice of adverse possession (as above indicated), maintaining the property, occupying it or renting it to an occupant,
- Driving or walking across someone else's land using the same path for may years without receiving complaints from the owner.
Adverse Possession Law in Florida
An 1869 Florida statute allows for adverse possession of abandoned property if the rightful owner does not contest an open, adverse, and continuous claim by someone else for seven years.
The lawmakers did not intend to permit people to select land they wanted, squat on it, and steal it. The common law notion of adverse possession simply allows people without color of title who take over and maintain an abandoned property for a long time to have a reasonable expectation that the owner of title will not come along and uproot them out of spite or sudden interest in the property. It also protects those with color of title who buy property and care for it a long time; it prevents lien holders, heirs, or others with some real or imagined claim, from snatching all or part of the property that they have absolutely ignored all those years.
Florida Statute Section 95.16 governs real estate adverse possession with color of title, and 95.18 governs adverse possession without color of title.
An 1869 Florida statute allows for adverse possession of abandoned property if the rightful owner does not contest an open, adverse, and continuous claim by someone else for seven years.
The lawmakers did not intend to permit people to select land they wanted, squat on it, and steal it. The common law notion of adverse possession simply allows people without color of title who take over and maintain an abandoned property for a long time to have a reasonable expectation that the owner of title will not come along and uproot them out of spite or sudden interest in the property. It also protects those with color of title who buy property and care for it a long time; it prevents lien holders, heirs, or others with some real or imagined claim, from snatching all or part of the property that they have absolutely ignored all those years.
Florida Statute Section 95.16 governs real estate adverse possession with color of title, and 95.18 governs adverse possession without color of title.
95.16 Real property actions; adverse possession under color of title.
(1)When the occupant, or those under whom the occupant claims, entered into possession of real property under a claim of title exclusive of any other right, founding the claim on a written instrument as being a conveyance of the property, or on a decree or judgment, and has for 7 years been in continued possession of the property included in the instrument, decree, or judgment, the property is held adversely. If the property is divided into lots, the possession of one lot shall not be deemed a possession of any other lot of the same tract. Adverse possession commencing after December 31, 1945, shall not be deemed adverse possession under color of title until the instrument upon which the claim of title is founded is recorded in the office of the clerk of the circuit court of the county where the property is located.
(2)For the purpose of this section, property is deemed possessed in any of the following cases:
(a)When it has been usually cultivated or improved. (b)When it has been protected by a substantial enclosure. All land protected by the enclosure must be included within the description of the property in the written instrument, judgment, or decree. If only a portion of the land protected by the enclosure is included within the description of the property in the written instrument, judgment, or decree, only that portion is deemed possessed.
(c)When, although not enclosed, it has been used for the supply of fuel or fencing timber for husbandry or for the ordinary use of the occupant.
(d)When a known lot or single farm has been partly improved, the part that has not been cleared or enclosed according to the usual custom of the county is to be considered as occupied for the same length of time as the part improved or cultivated.
95.18 Real property actions; adverse possession without color of title.
(1)When the occupant or those under whom the occupant claims have been in actual continued occupation of real property for 7 years under a claim of title exclusive of any other right, but not founded on a written instrument, judgment, or decree, the property actually occupied shall be held adversely if the person claiming adverse possession made a return of the property by proper legal description to the property appraiser of the county where it is located within 1 year after entering into possession and has subsequently paid all taxes and matured installments of special improvement liens levied against the property by the state, county, and municipality.
(2)For the purpose of this section, property shall be deemed to be possessed in the following cases only:
(a)When it has been protected by substantial enclosure.
(b)When it has been usually cultivated or improved.
The Adverse Possession Notice
The DR-452 form notifies government of adverse possession under 95.18 above. The possessor files it with the county property appraiser, within a year after taking possession. The form requires a legal description of the property, which one can obtain from the county property appraiser or related web site. The form requires notarization and upon filing, the property appraiser or designate will sign it.
http://dor.myflorida.com/dor/
This bulletin explains Adverse Possession claim:
http://dor.myflorida.com/dor/
The DR-452 form notifies government of adverse possession under 95.18 above. The possessor files it with the county property appraiser, within a year after taking possession. The form requires a legal description of the property, which one can obtain from the county property appraiser or related web site. The form requires notarization and upon filing, the property appraiser or designate will sign it.
http://dor.myflorida.com/dor/
This bulletin explains Adverse Possession claim:
http://dor.myflorida.com/dor/
County officials typically report the notice of adverse possession to the owner and lienor. For example, Charlotte County Florida publishes this notice:
In the spirit of full disclosure of public records, when this office receives a claim of adverse possession we notify the record owner by mail, including a copy of the claim, and insert the words adverse possession filed at the beginning of the parcel description on our website.
Furthermore, Florida's bar has proposed, and legislators have sponsored, legislation requiring even more notice. For example HB 887 states:
Adverse possession is a method of acquiring title to real property by possession for a period of time. To acquire title by adverse possession without color of title (without having a deed or other recorded document), a claimant must openly possess the real property, must pay all taxes for a period of seven years, and must have filed a return of the land for taxes during the first year of occupation. Current law does not require any notice to the owner who previously paid the taxes.
This bill adds a requirement related to adverse possession without color of title. The bill requires that a person who files a return for taxes with the intent of claiming the property by adverse possession must give notice to the property owner within 15 days of filing the return.
This bill does not appear to have a fiscal impact on state or local governments.
For this reason, the disseisor has little chance that the adverse possession will escape the rightful owner's attention.
Quiet Title for Obtaining Clear Title
The disseisor does not automatically receive title to the real estate at the end of the prescribed adverse possession period (7 years in Florida). The legal owner actually loses the right to come onto the disseisor's portion of the property and dispossess the disseisor after that period.
The disseisor must file a Quiet Title lawsuit after the prescribed period, and obtain an order that bestows title in the name of the disseisor.
Note that although the law mandates an adverse possession period of 7 years, circumstances might exist under which a judge will grant title after a shorter period.
The Benefit of Adverse Possession to a Community
All kinds of bad things happen to abandoned property.
- Weeds and bushes can grow tall and make yards shabby.
- Yards can become homes for varmints that cause damage to others' homes.
- Gophers, turtles, armadillos, or dogs may dig holes in the yard and children could fall into them and break their legs.
- Termites can eat up the wooden parts, or even concrete.
- The climate can cause mold and mildew to grow on and in the walls and ventilation systems.
- Water pipes can freeze and burst, flooding the property.
- The roof can leak and cause wood to rot, or the roof to cave in or walls to collapse.
- Fences can collapse, injuring neighbors.
Failure to take care of all these problems makes the house a danger to adjacent houses and diminishes the value of neighborhood. Such houses should and often do get bulldozed.
Abandoned property can become a haven for criminals and drug users. They can break in and use the place as a hideout, crack house, marijuana growing house, or methamphetamine lab.
Obviously, with a responsible adverse possession, a squatter can keep the place fixed up, the yard mowed, the bushes trimmed, the house painted, the roof patched, and the air conditioning in good condition and running to reduce humidity and mold inside. That can keep neighborhoods attractive and more valuable to investors and new home owners.
For this reason, a proper presentation of such possession to any court in response to a claim of wrongdoing by the adverse possession could result in a favorable ruling for the squatter.
Trespass in the Context of Adverse Possession
Sometimes mortgagees who have won a house through foreclosure do not take proper care of the property. They abandon it. One knows that by looking at it because it appears abandoned - yard trashy and overgrown, nobody living there, no maintenance done on the place.
However, sometimes landowners want to sell or rent the house, so they put a sign up in the yard. Or they staple a no-trespassing notice on the door or other conspicuous place on the outside of the house. That could indicate the owner did not abandon the property, but simply has not maintained it properly. A squatter who removes the signs can rightly suffer a trespassing charge under such condition, UNLESS the same sign or notice has stayed up for a long time, like a year or more, and still nobody has paid any attention or given any care to the property. It might go worse for someone who removes the sign or notice.
Abandoned property can become a haven for criminals and drug users. They can break in and use the place as a hideout, crack house, marijuana growing house, or methamphetamine lab.
Obviously, with a responsible adverse possession, a squatter can keep the place fixed up, the yard mowed, the bushes trimmed, the house painted, the roof patched, and the air conditioning in good condition and running to reduce humidity and mold inside. That can keep neighborhoods attractive and more valuable to investors and new home owners.
For this reason, a proper presentation of such possession to any court in response to a claim of wrongdoing by the adverse possession could result in a favorable ruling for the squatter.
Trespass in the Context of Adverse Possession
Sometimes mortgagees who have won a house through foreclosure do not take proper care of the property. They abandon it. One knows that by looking at it because it appears abandoned - yard trashy and overgrown, nobody living there, no maintenance done on the place.
However, sometimes landowners want to sell or rent the house, so they put a sign up in the yard. Or they staple a no-trespassing notice on the door or other conspicuous place on the outside of the house. That could indicate the owner did not abandon the property, but simply has not maintained it properly. A squatter who removes the signs can rightly suffer a trespassing charge under such condition, UNLESS the same sign or notice has stayed up for a long time, like a year or more, and still nobody has paid any attention or given any care to the property. It might go worse for someone who removes the sign or notice.
Essentially, a landowner who does not protect possessory rights in real estate from wrongful interference thereby licenses an interloper, or disseisor. The license becomes irrevocable after some statutory period, seven years in Florida. The disseisor might also argue "necessity" for an adverse possession, such as in the case where poverty prevents renting or buying a residence. Such an argument will not likely stave off eviction if the disseisor has an alternative residence. Thus, the rightful possessor, by ignoring, forgetting, or not minding the adverse possession, gives away possessory rights by acquiescence.
On the other hand, the rightful owner might order the disseisor off the property. If the disseisor refuses and the rightful owner complains to the police, the police will order the disseisor to leave. If the disseisor stays, the police will arrest and charge the disseisor with trespass, a crime.
An disseisor should take note that if an eviction occurs, the rightful possessor might have the disseisor's personal possessions removed and set on the curb for others to take. An associated dispute could become messy, with the disseisor demanding restitution for repairs, improvements, taxes, and Homeoner Association dues, and the rightful possessor demanding offsetting rent and compensation for the inconvenience of eviction.
Furthermore, the rightful owner might sue the disseisor in tort for trespass on land. The owner need not claim any particular damages, but certainly will demand compensation for all expenses associated with the trespass, eviction, and mending any repairs. The court might award punitive damages if the disseisor seemed to have intended to steal the property from the rightful owner.
People Seizing Abandoned Property in Florida
Entrepreneurs like mortgage broker Mark Guerette, 47, run afoul of the law by seizing properties abandoned through foreclosure and eviction. Authorities arrested Guerette in April 2010 for trespassing on nineteen Florida properties he had possessed (some of which he rented out) in the hopes that he would gain legal title after seven years of adverse possession.
While the law permits "Adverse Possession" for seven years to result in gaining legal title to the property, the law also labels such possession as "trespass."
Possible Challenges of Right to Title
For the foregoing reasons, it seems simpler to take than to keep possession. Nevertheless, many reasons exist for questioning whether an alleged owner has actual ownership rights sufficient to file a legitimate trespass complaint. A determined disseisor can and should raise the pertinent issues to keep the alleged owner at bay, and retain possession, even if it requires a Quiet Title action. An disseisor can:
- Demand that the alleged owner prove actual ownership status (the right to remove you), and challenge everything people affecting chain of title and proof of status as holder in due course with right to evict;
- Show proof of status as rightful possessor - notice of adverse possession, maintenance records, photos of appearance, tax records, homeowner association dues records;
- Claim having shown the most interest in the property and put it to its highest and best use;
- Accuse the other party of abandoning and neglecting the property;
- File a quiet title or common law fraud complaint;
- Dig in the heals and refuse to leave, remembering that "possession is 9/10 of the law," but prepare for a battle (easy to lose) against law enforcers and eviction attorneys.
Possible Adverse Possession Remedies
Many opportunities exist to challenge an eviction and support an adverse possession. One might.
- File a request for homestead exemption;
- File adverse possession notice upon buying a property, and stop paying;
- Build a case based on the fact that the lender had no privity of contract, that the challenger funded the loan, and the lender/trustee holds title fraudulently;
- Repudiate the loan and start demanding proof of holder in due course status, particularly after securitization;
- File an appraisal fraud complaint, and show replacement cost and income capitalization estimates to prove it, implicating the seller, mortgage broker, appraiser, realtors, and lender.
- File a trover complaint, demanding compensation for conversion of the borrower's chattel, the note, through securitization.
In short, one could make the eviction effort a nightmare for the HIDC, possibly tying the property up in litigation for years.
State legislatures have received encouragement from state bars to make adverse possession more difficult by requiring the property appraiser to notify the lien-holder of record upon receipt of an adverse possession notice, and the tax collector of payment of property taxes. Unless the lien-holder has fallen asleep completely, this will spoil adverse possession by opportunists looking for houses which foreclosures have emptied.
So, Do YOU Want Adverse Possession?
If you have an interest in establishing an adverse possession case, contact non-attorney Bob Hurt for ideas on how to prepare and how to maximize the chance of success while minimizing the chance of loss. In the end, the court might award you with possessory rights. You might obtain a property worth hundreds of thousands of dollars just for taking care of it and standing up as a disseisor.
bob at bobhurt dot com
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