- Notify the owner of the AP to avoid an owner freakout.
- Sell the owner on the idea of leaving the APer alone, at least for a while
Furthermore, owners will often run to the sheriff to complain if they see someone in their house, EVEN after abandoning the realty. And the Sheriff MIGHT issue a trespass warning or arrest the occupant or APer for breaking and entering, scheme to defraud, burglary, criminal mischief, or grand theft. It has happened repeatedly in central Florida.
Note that the law does not require someone to abandon property in order to give an APer the right to AP it. The owner merely needs to sleep on his right of possession. Florida requires a seven-year snooze, after which, if the APer has complied with statutes (see below), the rightful owner loses the right to dispossess the APer.
A letter like this might put the owner's mind at ease and cause less worry, seeing the APer more as a friend than an interloper. It might avoid conflict. Or it might raise a few hackles. But it does give fair notice to the owner.
As a matter of fact, Foreclosure Plaintiffs seldom interfere with Adverse Possession at its outset because they know that after a sale of the realty at auction, the buyer will obtain a writ of possession that entitles them to remove the occupant with the Sheriff's assistance.
-------------------------------------
Date
From: Adverse Possessor
address
To: Alleged Rightful Owner of Adversely Possessed Realty
address
Subject: Adverse Possession of Residential Real Property (hereinafter "Realty") at address
Dear Alleged Rightful Owner of the Subject Realty:
Background. I have attached a copy of my notice of adverse possession of your abandoned Realty, now in foreclosure. I filed the notice with the Sarasota County Property Appraiser on 12 February 2011. I provide the copy to you as a courtesy formally to alert you of the possession.
Date
From: Adverse Possessor
address
To: Alleged Rightful Owner of Adversely Possessed Realty
address
Subject: Adverse Possession of Residential Real Property (hereinafter "Realty") at address
Dear Alleged Rightful Owner of the Subject Realty:
Background. I have attached a copy of my notice of adverse possession of your abandoned Realty, now in foreclosure. I filed the notice with the Sarasota County Property Appraiser on 12 February 2011. I provide the copy to you as a courtesy formally to alert you of the possession.
Abandonment,n.1. "The relinquishing of a right or interest with the intention of never again
claiming it." Black's Law Dictionary, 8th Edition (2004), page 5.
Purpose. I write to you now to discuss the adverse possession's financial effect upon you, the County, the situs neighborhood of the Realty, and the people of Florida.Overview of Benefits. Many people consider it bold, audacious, and disrespectful to take adverse possession of real property. They don't realize the ultimate good that always comes of it. I want to explain that good to you.
Many benefits accrue to owners who have abandoned their homes, foreclosure plaintiffs, the realty itself, the community, the municipality and county, and the occupant of the abandoned home in adverse possession:
- Loving Care. A family who lives in the Realty dwelling treats it like their home, caring for it as they would their own in the hope that someday it will become theirs permanently.
- Mold and Mildew. Adverse possessors typically keep the air conditioning system running summer and winter. This prevents dangerous buildup of mold and mildew that excessive humidity would cause if the A/C didn't operate for extended time. As you know, mold constitutes a serious danger to health.
- Pestilence. Adverse possessors typically keep the dwelling free of termites, roaches, bedbugs, spiders, centipedes, rodents and other vermin that constitute a health hazard to humans and that actually damage the dwelling, often necessitating costly repairs.
- Druggies. Adverse possessors prevent drug dealers, marijuana grower, cocaine/crack/crystal meth addicts and other ne'er-do-wells from partying in and damaging the dwelling from neglect.
- Thieves. An unoccupied house often falls prey to thieves who steal appliances, plumbing fixtures, doors, window coverings, copper wiring and plumbing, and flooring. It costs the owner a fortune to replace these and put the house in condition suitable for selling it. Adverse possessors prevent thieves from stealing those things.
- Vandals. Vandals and street thugs often see an unoccupied dwelling as a target of opportunity; they break windows, destroy carpets, urinate or defecate on the floors, break holes in walls, destroy the roof, turn on the water and let water from stopped up sinks flood the floor, jam metal and other objects down into the plumbing, break toilet and sink porcelain, and so on. Cleanup and repair can cost the owner a small fortune. Adverse possessors keep such damage from happening by increasing the vandals' risk of capture.
- Freezes and Hurricanes. Adverse possessors typically mind the effect of the weather on plumbing and windows. They install protective coverings to prevent violent storms from breaking windows. They wrap water pipes or let outside faucets drip during freezes to keep them from bursting. An unoccupied house gets no such respectful care, and related repairs can become costly.
- Maintenance. Residential realty always need routine maintenance such as lawn-mowing, hedge-trimming, edging, filling in of holes dug by dogs and other creatures, painting, landscaping, fixing broken windows, and so on..An occupant will typically do all this work, but the owner must pay to have others do it if no occupant lives there.
- HOA Dues. Adverse possessors must pay Home Owner Association (HOA) dues. The owner must pay them if no adverse possessor lives there. But typically, HOAs lose precious money critical to their operation when people in mortgage foreclosure abandon the homes. Such people stop paying HOA dues and that hurts the community overall, putting the burden of HOA support on the remaining residents.
- Taxes. Adverse possessors must pay property taxes. The owner must pay them if no adverse possessor lives there. Owners in foreclosure who abandon their realty STOP paying property taxes. Unless the foreclosure plaintiff pays them, the County Tax Collector must go through the trouble of filing a tax lien and auctioning tax lien certificates. An adverse possessor saves the County money by paying the taxes.
- Property Management. Managing all the above constitutes a significant enterprise of work and attention to duty for the adverse possessor. The associated management fees would similarly tax the rightful owner. The adverse possessor saves the rightful owner from having to pay that cost. The rightful owner wouldn’t pay them anyway, and that means the realty would become run-down and ugly.
- Property Values. Because of the above realities, abandoned residential realty invites wanton damage and undesirable lurkers, makes the neighborhood look deserted and unattractive, and reduces the curb appeal of the community. Therefore, people will not want to live there. That will diminish property values in the community in general.
- 7-Year Savings. Adverse possessors can pay taxes, homeowner dues, repair, and maintenance costs for up to 7 years, and the rightful owner can, just before the statute of limitations expires, obtain a writ of possession or ejectment from the court, whereupon the sheriff will give notice and remove the adverse possessor. Thus, adverse possession poses no risk to the rightful owner who doesn't sleep on his rights beyond 7 years.
- Restored Realty Prices. The adverse possessors can end up leaving the Realty AFTER values have returned to their normally ridiculously high values because more people will have jobs and the ability to buy realty.
- Litigation Risk. It costs an enormous amount of money to litigate against people with respect to questions of Realty ownership and title. Adverse possessors save the rightful owner much of that cost because they admit that they don't have ownership rights until after seven years. On the other hand, an adverse possessor might have profound knowledge of mortgages, lending practices, securitization, and the recent Financial Crisis Inquiry Commission Report's details about abuse of authority and duty in both government and the lending and securities industries. Such an adverse possessor could assist the prior owner of record in challenging REAL titular interest in the Realty. It could easily cost $100,000 or more in legal fees, and put the foreclosure plaintiff or new owner of record at risk of disgorgement and treble damages, and possibly exorbitant punitive damages in favor of the prior owner of record. Thus the right adverse possessor could have courage to use the courts to attack fraud in the appraisal, loan, mortgage, assignments, securitization, and sale of bonds, and thereby wrest rightful title deservedly from crooked foreclosure plaintiffs. Any harm to crooked foreclosure plaintiffs helps the people of the state.
- Everybody Wins. Adverse possessors keep the property in good shape, pay taxes and HOA dues, keep the community safer than otherwise, and help to increase property values. I imagine that rightful owners of common sense will see adverse possessors as a boon, not a bane, to the rightful owner, to the adverse possessor's family, to the municipality, to the neighborhood, to the courts, and to law enforcers.
- Check the Numbers. Examination of home maintenance and cost records typically will reveal that adverse possessors can save the rightful owner and foreclosure plaintiffs an enormous amount of worry and money without putting them you at risk of losing the realty permanently or having to spend substantially on ownership costs.
- About Possessions Left Behind. A homeowner who abandons the realty and leaves behind precious possessions does so foolishly. That exposes the possessions to loss by theft and vandalism. Owners have the legal duty to protect their possessions, and locking the doors on an abandoned house does not constitute such protection. The conscientious adverse possessor, while disposing of junk left behind, might recognize some items as valuable and keep them safe for the rightful owner, but has no legal duty to do so.
Permission: NO. I do not ask your permission to possess your Realty. In fact, I specifically deny having your permission. I have ADVERSE possession.
Trespass. This letter should have helped you see the wisdom of forbearance in accusing me of trespass. I hope that you will communicate directly with me by telephone or mail if you intend to accuse me of trespass. The sheriff knows this as a CIVIL, not a criminal issue. I believe we can settle the matter amiably and without law enforcement if you give me reasonable notice. 30 days' notice should suffice. To reciprocate your kindness, I shall timely notify you of my intention to abandon the Realty. 30 days' notice should suffice. I shall provide you with an accounting on my expenses and costs associated with the adverse possession.
Adverse Possession - A Fine American Tradition Inherited from Britain. Many people consider adverse possession a "something for nothing" scheme, scam, and con. Some consider it grand theft and fraud. Such thinking constitutes a delusion as you have seen from the foregoing presentation. Adverse Possession actually protects property and puts it to the highest and best use for everyone concerned. Jurists have recognized this for centuries and the related facts show why the Florida Legislature enshrined it in Florida Statutes 95.12 through 95.31. I have appended relevant excerpts below. It ensures that the property receives reasonably good care, that it enjoys improvement, that the County receives related property taxes, and that the rightful owner has a HUGE window of opportunity to excise the adverse possessor from the land. So it provides society with benefits such as I have explained above. You get someone to look after your property and save you a ton of money, and it does not cost you a penny for 7 years. True, you could have fixed up the property and rented it out. But you didn't. You abandoned it to God knows what fate. The Legislature tends to favor possession for highest best use. Therefore the Legislature has enacted the adverse possession laws to refine the statutory and common law of Britain that formed the basis of Florida's original state laws.
No Response Necessary. You do not need to respond to this letter, but I shall appreciate it if you do.
Memorandum of Law. I have attached a memorandum of law for your reference.
Law References
Florida Statutes as of 2 Feb 2012
Trespass. This letter should have helped you see the wisdom of forbearance in accusing me of trespass. I hope that you will communicate directly with me by telephone or mail if you intend to accuse me of trespass. The sheriff knows this as a CIVIL, not a criminal issue. I believe we can settle the matter amiably and without law enforcement if you give me reasonable notice. 30 days' notice should suffice. To reciprocate your kindness, I shall timely notify you of my intention to abandon the Realty. 30 days' notice should suffice. I shall provide you with an accounting on my expenses and costs associated with the adverse possession.
Adverse Possession - A Fine American Tradition Inherited from Britain. Many people consider adverse possession a "something for nothing" scheme, scam, and con. Some consider it grand theft and fraud. Such thinking constitutes a delusion as you have seen from the foregoing presentation. Adverse Possession actually protects property and puts it to the highest and best use for everyone concerned. Jurists have recognized this for centuries and the related facts show why the Florida Legislature enshrined it in Florida Statutes 95.12 through 95.31. I have appended relevant excerpts below. It ensures that the property receives reasonably good care, that it enjoys improvement, that the County receives related property taxes, and that the rightful owner has a HUGE window of opportunity to excise the adverse possessor from the land. So it provides society with benefits such as I have explained above. You get someone to look after your property and save you a ton of money, and it does not cost you a penny for 7 years. True, you could have fixed up the property and rented it out. But you didn't. You abandoned it to God knows what fate. The Legislature tends to favor possession for highest best use. Therefore the Legislature has enacted the adverse possession laws to refine the statutory and common law of Britain that formed the basis of Florida's original state laws.
No Response Necessary. You do not need to respond to this letter, but I shall appreciate it if you do.
Memorandum of Law. I have attached a memorandum of law for your reference.
Law References
Florida Statutes as of 2 Feb 2012
95.12 Real property actions.—No action to recover real property or its possession shall be maintained unless the person seeking recovery or the person’s ancestor, predecessor, or grantor was seized or possessed of the property within 7 years before the commencement of the action.
History.—s. 2, ch. 1869, 1872; RS 1287; GS 1718; RGS 2932; CGL 4652; s. 8, ch. 74-382; s. 521, ch. 95-147.
95.13 Real property actions; possession by legal owner presumed.—In every action to recover real property or its possession, the person establishing legal title to the property shall be presumed to have been possessed of it within the time prescribed by law. The occupation of the property by any other person shall be in subordination to the legal title unless the property was possessed adversely to the legal title for 7 years before the commencement of the action.
History.—s. 4, ch. 1869, 1872; RS 1289; GS 1720; RGS 2934; CGL 4654; s. 9, ch. 74-382.
95.14 Real property actions; limitation upon action founded upon title.—No cause of action or defense to an action founded on the title to real property, or to rents or service from it, shall be maintained unless:
(1) The person prosecuting the action or making the defense, or under whose title the action is prosecuted or the defense is made, or the ancestor, predecessor, or grantor of the person, was seized or possessed of the real property within 7 years before commencement of the action; or
(2) Title to the real property was derived from the United States or the state within 7 years before commencement of the action. The time under this subsection shall not begin to run until the conveyance of the title from the state or the United States.
History.—s. 3, ch. 1869, 1872; RS 1288; GS 1719; RGS 2933; CGL 4653; s. 10, ch. 74-382.
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.
History.—s. 5, ch. 1869, 1872; RS 1290; GS 1721; RGS 2935; CGL 4655; s. 1, ch. 19253, 1939; s. 1, ch. 22897, 1945; ss. 11, 12, ch. 74-382; s. 1, ch. 77-174; s. 1, ch. 87-194; s. 522, ch. 95-147.
195.18 Real property actions; adverse possession without color of title.—
(1) When the occupant has, 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 is held adversely if the person claiming adverse possession 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 1 year after entering into possession and 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.
(2) For the purpose of this section, property is deemed to be possessed if the property has been:
(a) Protected by substantial enclosure;
(b) Cultivated or improved in a usual manner; or
(c) Occupied and maintained.
(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.
(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.
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.
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.
1Note.—Section 4, ch. 2011-107, provides that “[t]his act shall take effect July 1, 2011, and applies to adverse possession claims in which the return was submitted on or after that date, except for the procedural provisions governing the property appraiser’s administration of adverse possession claims included in s. 95.18(4)(c) and (d) and (7), Florida Statutes, and the provisions governing the payment of taxes included in s. 197.3335, Florida Statutes, as created by this act, which apply to adverse possession claims for which the return was submitted before, on, or after that date.”
Note: the foregoing does not constitute legal advice. It constitutes education about potential benefits.
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Bob Hurt - Home Page - +1 (727) 669-5511
2460 Persian Drive #70 - Clearwater, FL 33763
Donate to my Law Studies
Learn to litigate: Buy and Study JURISDICTIONARY
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