Tuesday, February 08, 2011

Adverse Possession in an Era of High Foreclosures


Bob Hurt
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.


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.

Note that since I wrote this article in 2011, the Florida Legislature has changed the adverse possession limitation statute.  See the 2014 version below, and note that it prohibits usufruct until after one has fulfilled all the requirements of adverse possession for 7 full years.

The Meaning of Adverse Possession 

The dictionary provides these definitions:

  1. 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.
  2. 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.


Justifications for Adverse Possession
Numerous justifications for adverse possession exist:
  1. Unresolved real estate boundary disputes
  2. Abandoned land - an owner leaves and starts another life elsewhere
  3. Incomplete, informal, or unregisterable ownership transfers
  4. Missing owners
  5. Ignored property - an owner gets too busy with other matters to attend to it
Examples of Adverse Possession

  1. 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.
  2. Drilling or mining under another's land, such as through an entry into the ground on one's own land.
  3. Squatting in someone else's abandoned house or on someone's abandoned land - filing a notice of adverse possession (as above indicated), maintaining the property, occupying it or renting it to an occupant,
  4. Driving or walking across someone else's land using the same path for may years without receiving complaints from the owner.

The Court's Interest in Fairness

The courts will usually order a bad faith disseisor (who simply intends to steal the real estate) to pay compensation to the owner.  The court will typically order the owner to compensate the disseisor for losses the owner's failure to communicate caused, particular with respect to crop failures.

The Austrailian Torrens System of title registration does not exist in the USA.  It causes the government to protect owners who register land in the system from ever permanently losing possessory rights to a disseisor through adverse possession.

Take note that law generally favors the one who has possession of the property.  Reasons follow.

If you have the physical force necessary to take and occupy land, and no one can remove you from the land or occupy it without your permission, then the land belongs to you, and rightfully so.  How do we know?  Take a hint from the below-referenced 1918 Harvard Law Review article.  It provides:


"In England, evidence of the original royal feoffments or gifts of former centuries was long since lost. The proprietor must go back to the earliest possessor or occupant who can be proved to have held seisin in fee. Except for government grant, possession is thus the ultimate root of all titles. Title deeds are nothing but the history or evidence of the transfer of rights arising from possession, reaching back perhaps to "that mailed marauder, that royal robber," that great adverse possessor, - William the Conqueror. "Every title to land has its root in seisin; the title which has its root in the oldest seisin is the best title." ~ With the help of statutes of limitation, however, it is now ordinarily sufficient for the English conveyancer to go back forty years for a root of title." 

Born illegitimate, William the "Bastard" Conqueror himself proved the above point of possession when he sailed from Normandy in 1066.  His army obliterated King Harold Godwinson's army in the Battle of Hastings, and killed Harold and two of his brothers.  No one after that had the will to mess with the Bastard, and he died many years later on the throne of England.  In time, the invaders imbued England with bits of Norman and French language and culture, and became English.

THAT act of the Bastard we would call "seisen," obtaining land with the right to pass it on to heirs.  In this case MIGHT, indomitable physical force, made the right.

And all this goes to explain why one should never abandon one's land, and never leave it for long. lest one lose it to interlopers, disseisors, or thieves.  One might not have the raw power, nor the assistance of the courts, to take it back.   Better for one to make others have a hard time taking it. This applies likewise in foreclosure defense.  One oughtn't leave till forced under threat of death.

And take note that if enough people refuse to leave foreclosed land, and then put up a fight to the death to keep possession, some will have died, but others will have done essentially what the Bastard did.  And thereby they can become Bastards themselves, so to speak, of the William-the-Conqueror variety.

Note that courts operate in a similar fashion.  The law means only what judges say it means.  The law IS the position of the prevailing party in any adversarial dispute.  We might WISH the Constitution and pursuant statutes comprise the law.  They don't.  The winners make the law  by winning.  Like it or not, MIGHT, whether physical, intellectual, legal,  or financial, makes RIGHT.  And this key makes "might:"  always outlast the adversary, and NEVER, EVER give up. 

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.


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/forms/2010/dr452.pdf - Return of Real Property in Attempt to Establish Adverse Possession without color of title

This bulletin explains Adverse Possession claim:

http://dor.myflorida.com/dor/property/resources/pdf/bulletin1001.pdf

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 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.



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:
  1. 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;
  2. Show proof of status as rightful possessor - notice of adverse possession, maintenance records, photos of appearance, tax records, homeowner association dues records;
  3. Claim having shown the most interest in the property and put it to its highest and best use;
  4. Accuse the other party of abandoning and neglecting the property;
  5. File a quiet title or common law fraud complaint;
  6. 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. 
  1. File a request for homestead exemption;
  2. File adverse possession notice upon buying a property, and stop paying;
  3. 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;
  4. Repudiate the loan and start demanding proof of holder in due course status, particularly after securitization;
  5. 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.  
  6. 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.


Further Reading


Click this link:

Henry W. Ballantine
Harvard Law Review
Vol. 32, No. 2 (Dec., 1918), pp. 135-159
(article consists of 25 pages)
Stable URL: http://www.jstor.org/stable/1327641

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 Hurt
727 669 5511
http://bobhurt.com/contact.php
bob at bobhurt dot com


Post Script


Usufruct


As of 2014, Florida Statute 95.18 (see below) does now make it crystal clear that one cannot rent out adverse possession residences. However, I believe that violates the doctrine of usufruct. http://en.wikipedia.org/wiki/Usufruct. The adverse possessor has right to all fruit of the land, including harvesting crops and renting out the property. In Kluger v White, the Florida Supremes lambasted the Legislature for removing a common law right without providing a statutory substitute, and struck down a statute for that reason. http://www.leagle.com/decision/1973282281So2d1_1282.xml/KLUGER%20v.%20WHITE

Also see http://www.floridabar.org/divcom/jn/jnjournal01.nsf/Author/E9732A870D22810185257250007C9B0B.

Thus, I suggest adverse possessors who want to rent out their adversely possessed property challenge the changes to 95.18 by seeking a declaratory judgment regarding the invasion of their common law right of usufruct.



The 2014 Florida Statutes


Title VIII
LIMITATIONS

Chapter 95 
LIMITATIONS OF ACTIONS; ADVERSE POSSESSION

View Entire Chapter

95.18 Real property actions; adverse possession without color of title.
(1) When the possessor has been in actual continued possession 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, or when those under whom the possessor claims meet these criteria, the property actually possessed is held adversely if the person claiming adverse possession:
(a) Paid, subject to s. 197.3335, all outstanding taxes and matured installments of special improvement liens levied against the property by the state, county, and municipality within 1 year after entering into possession;
(b) Made a return, as required under subsection (3), of the property by proper legal description to the property appraiser of the county where it is located within 30 days after complying with paragraph (a); and
(c) Has subsequently paid, subject to s. 197.3335, all taxes and matured installments of special improvement liens levied against the property by the state, county, and municipality for all remaining years necessary to establish a claim of adverse possession.
(2) For the purpose of this section, property is deemed to be possessed if the property has been:
(a) Protected by substantial enclosure; or
(b) Cultivated, maintained, or improved in a usual manner.
(3) A person claiming adverse possession under this section must make a return of the property by providing to the property appraiser a uniform return on a form provided by the Department of Revenue. The return must include all of the following:
(a) The name and address of the person claiming adverse possession.
(b) The date that the person claiming adverse possession entered into possession of the property.
(c) A full and complete legal description of the property that is subject to the adverse possession claim.
(d) A notarized attestation clause that states:
UNDER PENALTY OF PERJURY, I DECLARE THAT I HAVE READ THE FOREGOING RETURN AND THAT THE FACTS STATED IN IT ARE TRUE AND CORRECT. I FURTHER ACKNOWLEDGE THAT THE RETURN DOES NOT CREATE ANY INTEREST ENFORCEABLE BY LAW IN THE DESCRIBED PROPERTY.
(e) A description of the use of the property by the person claiming adverse possession.
(f) A receipt to be completed by the property appraiser.
(g) Dates of payment by the possessor of all outstanding taxes and matured installments of special improvement liens levied against the property by the state, county, or municipality under paragraph (1)(a).
(h) The following notice provision at the top of the first page, printed in at least 12-point uppercase and boldfaced type:
THIS RETURN DOES NOT CREATE ANY INTEREST ENFORCEABLE BY LAW IN THE DESCRIBED PROPERTY.
The property appraiser shall refuse to accept a return if it does not comply with this subsection. The executive director of the Department of Revenue is authorized, and all conditions are deemed met, to adopt emergency rules under ss. 120.536(1) and 120.54(4) for the purpose of implementing this subsection. The emergency rules shall remain in effect for 6 months after adoption and may be renewed during the pendency of procedures to adopt rules addressing the subject of the emergency rules.
(4) Upon the submission of a return, the property appraiser shall:
(a) Send, via regular mail, a copy of the return to the owner of record of the property that is subject to the adverse possession claim, as identified by the property appraiser’s records.
(b) Inform the owner of record that, under s. 197.3335, any tax payment made by the owner of record before April 1 following the year in which the tax is assessed will have priority over any tax payment made by an adverse possessor.
(c) Add a notation at the beginning of the first line of the legal description on the tax roll that an adverse possession claim has been submitted.
(d) Maintain the return in the property appraiser’s records.
(5)(a) If a person makes a claim of adverse possession under this section against a portion of a parcel of property identified by a unique parcel identification number in the property appraiser’s records:
1. The person claiming adverse possession shall include in the return submitted under subsection (3) a full and complete legal description of the property sufficient to enable the property appraiser to identify the portion of the property subject to the adverse possession claim.
2. The property appraiser may refuse to accept the return if the portion of the property subject to the claim cannot be identified by the legal description provided in the return, and the person claiming adverse possession must obtain a survey of the portion of the property subject to the claim in order to submit the return.
(b) Upon submission of the return, the property appraiser shall follow the procedures under subsection (4), and may not create a unique parcel identification number for the portion of property subject to the claim.
(c) The property appraiser shall assign a fair and just value to the portion of the property, as provided in s. 193.011, and provide this value to the tax collector to facilitate tax payment under s.197.3335(3).
(6)(a) If a person makes a claim of adverse possession under this section against property to which the property appraiser has not assigned a parcel identification number:
1. The person claiming adverse possession must include in the return submitted under subsection (3) a full and complete legal description of the property which is sufficient to enable the property appraiser to identify the property subject to the adverse possession claim.
2. The property appraiser may refuse to accept a return if the property subject to the claim cannot be identified by the legal description provided in the return, and the person claiming adverse possession must obtain a survey of the property subject to the claim in order to submit the return.
(b) Upon submission of the return, the property appraiser shall:
1. Assign a parcel identification number to the property and assign a fair and just value to the property as provided in s. 193.011;
2. Add a notation at the beginning of the first line of the legal description on the tax roll that an adverse possession claim has been submitted; and
3. Maintain the return in the property appraiser’s records.
(7) A property appraiser must remove the notation to the legal description on the tax roll that an adverse possession claim has been submitted and shall remove the return from the property appraiser’s records if:
(a) The person claiming adverse possession notifies the property appraiser in writing that the adverse possession claim is withdrawn;
(b) The owner of record provides a certified copy of a court order, entered after the date the return was submitted to the property appraiser, establishing title in the owner of record;
(c) The property appraiser receives a certified copy of a recorded deed, filed after the date of the submission of the return, from the person claiming adverse possession to the owner of record transferring title of property along with a legal description describing the same property subject to the adverse possession claim; or
(d) The owner of record or the tax collector provides to the property appraiser a receipt demonstrating that the owner of record has paid the annual tax assessment for the property subject to the adverse possession claim during the period that the person is claiming adverse possession.
(8) The property appraiser shall include a clear and obvious notation in the legal description of the parcel information of any public searchable property database maintained by the property appraiser that an adverse possession return has been submitted to the property appraiser for a particular parcel.
(9) A person who occupies or attempts to occupy a residential structure solely by claim of adverse possession under this section prior to making a return as required under subsection (3), commits trespass under s. 810.08.
(10) A person who occupies or attempts to occupy a residential structure solely by claim of adverse possession under this section and offers the property for lease to another commits theft under s. 812.014.

History.s. 7, ch. 1869, 1872; s. 6, ch. 4055, 1891; RS 1291; GS 1722; RGS 2936; CGL 4656; s. 1, ch. 19254, 1939; ss. 13, 14, ch. 74-382; s. 1, ch. 77-102; s. 523, ch. 95-147; s. 1, ch. 2011-107; s. 1, ch. 2013-246.

7 comments:

Anonymous said...

The Homeowner Association is reaching out to abandoned property owners who "may" have "trespassers" living in their property. Will an adverse possession claim avail the person who has lived in the abandoned property and maintained it for a year?

The Consigliere said...
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Bob Hurt said...
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