Wednesday, March 16, 2011

Benefits of Adverse Possession

Adverse Possession Benefits -
An Overview

Adverse Possession Operates As A Civil Right

Adverse Possession means exercising possessory dominion over realty you don't own. Possessory dominion means enjoying the use of the realty, and maintaining, improving, and paying taxes, Home Owner Association dues, and special levies on it.

Black's Law Dictionary, Eight Edition, defines it this way:

adverse possession. 1. The use or enjoyment of real property with a claim of right when that use or enjoyment is continuous, exclusive, hostile, open, and notorious. • In Louisiana, it is the detention or enjoyment of a corporeal thing with the intent to hold it as one's own. La. Civ. Code art. 3421. — Also termed adverse dominion. Cf. PRESCRIPTION(5). [Cases: Adverse Possession 1–95. C.J.S. Adverse Possession §§ 2–225, 263–299, 327–338; Conflict of Laws § 76.]

Adverse Possession operates as a civil right under the laws of every state, and it puts disputes over possessory dominion in civil, not criminal, jurisdiction.

Florida Adverse Possession Law

The governing statutes in Florida: 95.12-95.281 (principally 95.16 and 95.18) and chapter 82.  After exercising adverse possession for the statutory period (seven years in Florida), the adverse possessor achieves full possessory right of the realty, even though title belongs to the owner of record. An adverse possessor must then sue for quiet title. The court will grant it if the adverse possessor fully complied with the relevant law.

Florida Statutes 760.51 and 16.57 provide an avenue to relief and remedy for violation of the associated right plus the right to due process of law and privacy guaranteed by Florida Constitution in Article I Sections 9 and 23.

Who Benefits from Adverse Possession? Everybody

Many benefits accrue from adverse possession to:
  • owners who have abandoned their homes,
  • foreclosure plaintiffs,
  • the realty itself,
  • the community,
  • the municipality and county, and
  • the adverse possessor or the occupant of the abandoned home

How Does Everyone Benefit from Adverse Possession?

1.      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.

2.    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.

3.    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.

4.    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.

5.    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.

6.    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.

7.    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.

8.    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.

9.    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.

10.  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.

11.  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.

12.  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.

13.  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.

14.  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.

15.  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.

16.  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.

17.  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.

18.  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.

19. Homes for the Homeless. The 2010 Census report revealed that Florida has 1.6 million (18%) vacant dwellings. Many of these fall into the category of "abandoned." The people from those vacant dwellings have to live somewhere. Most went to live with friends, relatives, or in homeless shelters, government subsidized housing, in sleazy motels, or in campers. In these places, families cannot easily provide the security they could give in their own homes. Adverse Possession provides a means to house these people without expense to government.

Sheriffs Arrest Adverse Possessors In Spite of Benefits

As insane as it seems, and in spite of the obvious benefits above, some county sheriffs try to destroy adverse possessors by arresting them for trespass, burglary, breaking and entering, fraud, and theft. This does immense harm to everyone above who benefits from adverse possession, particularly the adverse possessor and the county budget for law enforcement. When will the sheriffs every come to understand that the constitutions and laws acknowledge and protect adverse possession as a civil right?

Become ACTIVE in protesting the criminal behavior of sheriffs for persecuting adverse possessors and the occupants of the adversely possessed realty. Demand a halt to the fraudulent arrests and persecutions.

Bob Hurt  · Bob’s Blog
2460 Persian Drive #70 · Clearwater, FL 33763
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EndAdversePossession said...

What?! Taking something without paying for it is stealing. Are you saying that you support theft?

The only, ONLY person who benefits from adverse possession is the land thief who has taken something that was not his/hers in the first place. To take a position that "everyone" benefits from legalized land theft, is like saying everyone benefits from slavery. Just because something is legal, it does not follow that it is right (or in this case, beneficial). Adverse possession is repugnant, arcane and unnecessary.

I'm sorry that you support such a twisted view on property. People need to be responsible for their land.

And, taking something that is not yours is wrong plain and simple - I don't care what the law, history or your justification says - it's still wrong to take something that is not yours.

Bob Hurt said...

I don't think you see the issues clearly. Please allow my explanation. The truth can withstand honest investigation. Since you have a website devoted to ending AP, I guess honesty doesn't interest you much, but I'll give it a shot in good faith.

1. I want to post my reasonings on your web site. Do you block comments because you don't want opposing views there? Do you FEAR that careful analysis will explode your arguments' flaws?

2. You said before that one engages in fallacious reasoning to point to history ("Thats the way we've always done it") to justify something bad. In doing that you impugn traditions and the hard lessons of life that produced it, often lost in the mists of time. THAT constitutes a fallacy because some changing some historically sound situations can create civilizational mayhem and condemn a society for decades if not centuries afterward. Take Hitler's extermination of Jews. Germany still has a tiny Jewish population, unfortunately for Germany. Ashkenazi Jews have the highest average IQ of any racial group on earth. And take Adverse Possession. The benefits I spelled out stand rock solid. You could only distract the reader from them by referring to AP a stealing, an UTTERLY FALLACIOUS, Ad Hominem argument. Furthermore you only GAINSAID my assertion of benefits in spite of their glowingly obvious merit. THAT does not constitute a logical argument. I expect you to do better than that OR concede my point.

3. The Courts have across the USA soundly condemned squatting on realty and calling it AP. They show the common sense that it just does not seem right for a person with no rightful claim to the realty should get it merely by squatting on it for the statutory AP period. Right now, sheriffs around Florida arrest APers for theft, fraud, b&e, and so on because THEY don't understand AP in the context of abandonment in the throes of foreclosure. They don't grasp the civil nature of the issue.

4. AP laws remove possession from criminal jurisdiction and put it in civil jurisdiction. Due process requires that people who AP get notice and opportunity to be heard. Even drug racketeers get that right before the government confiscates the fruit of ill gotten gains. No squatter or APer deserves for the sheriff to throw them summarily in the street on the pretense that they committed a crime.

5. Taking something not yours has a RIGHT, not a wrong, nature in MANY circumstances. And the AP laws and traditions prove a practical class of cases in point. The fact that those laws have existed continuously for 600 years should clue you in to this reality. Legislators and judges have argued over this repeatedly throughout the centuries and have concluded every time that AP makes sense, so long as people don't abuse it.

Bob Hurt said...

6. Even if we had no AP laws, England did at the time of the Declaration of Independence in 1776, and every state had adopted English common and statutory law from that time as the basis (starting point) of state law. Even state AP law only modifies English AP law somewhat, and to the extent it does not, English AP law applies.

7. In Kluger v. White, 281 So. 2d 1 (Fla. 1973) and Kluger v. White, 281 So. 2d 1 (Fla. 1973) the Florida Supremes opined that the Florida Legislature had no authority to make a statute conflicting with a common law right without showing great public need or replacing the common law with a statutory equivalent. In Hoffman v. Jones, 280 So. 2d 431 (Fla. 1973) the Supremes said that since they MADE common law, they could also CHANGE common law when social evolution justified it.

8. Thus, social evolution has ripened the issue of AP to the point where the Supremes should revisit it and MANDATE that AP is a purely civil matter and the sheriffs should have a damned good reason (not the bogus reasons they now have) for arresting anyone for so-called AP crimes like theft, fraud, burglary, swindle, b&e, or trespass.

9. Social evolution justifies this because America has millions of homes which owners abandoned in foreclosure and prevailing foreclosers have not made available. Both sleep on their rights while millions of destitute families have no place to live or must camp out with their small children in sleazy motels in dangerous neighborhoods. This provides COMPELLING justification for putting those people in those available homes, even if for only a few months or years.

10. This has nothing to so with stealing because everyone knows that sooner or late a forecloser will get a writ of ejectment which a sheriff will execute, and therby remove the APer or the APer's occupant from the realty, giving plenty of notice and opportunity to be heard. This proves it IMPOSSIBLE actually to steal realty abandoned in foreclosure.