Sunday, March 27, 2011

Florida Adverse Possession Bill - Needs Work, Badly

Concerning Adverse Possession Bills:

This link lists all the Legislative action on AP as of 27 March 2011 




Dear Florida Senator Paula Dockery:

I know you have not met me, but I have a lot of friends in your district.  Some of them have fallen victim to sheriff deputies persecuting people who do adverse possession.  A few years ago I retired from the computer industry.  Since then I have devoted myself to study and writing about law.  I write about the Adverse Possession changes you and and Rep Roberson sponsored.   I want you to change your bill to improve it.



 S1142, as written, constitutes a bad law because it wastes resources and fixes no problem.  Given the time involved, people who lose realty to Adverse Possession (AP) deserve it for gross dereliction (not putting the land to its highest, best use).  Your bill does nothing to improve that hard, cold reality. 

The bill appear to me to flail arms  at a ship that left port 600 years ago.  It has ignored the problems that really need fixing.  

For one example, see the latest census report.  Florida has 1.6 million vacant residences (18%), largely because owners in foreclosure abandon them and people cannot afford to buy.  Meanwhile all families displaced by foreclosure in Florida desperately need a place to live, and AP could solve that, even if everyone knows it as merely a temporary solution.  

Unfortunately, irresponsible people (as occupants in AP houses) can quickly ruin a nice house in a decent neighborhood, but most of them haven't the moxy to take the place by AP.  Instead, slick operators sometimes AP homes for a fast buck.  If anything, the law should fix that by making them more accountable for damage to the place if they put occupants in it.

I shall make the following comments to everyone I can.  The bill is bad for the following reasons.  I also provide ways to make it good, and leave issues open for discussion.

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I find lots of action in Florida's legislature regarding adverse possession (AP).  Senate Bill, S1142 and House Bill H0927, below, seek to change the rules.  I agree with a couple, disagree strenuously with the rest, and have proposals the bills don't address:

   1. APer must swear to return under PoP.  This makes no sense because Making a false official statement already constitutes a second degree misdemeanor, and the state needs no more serious  penalty than that to dissuade falsifying the return.   See F.S. 837.06 False official statements.—Whoever knowingly makes a false statement in writing with the intent to mislead a public servant in the performance of his or her official duty shall be guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.

   2. Standardized Dept of Revenue AP form - ok

   3. Prop Appraiser informs rightful owner.  Unduly burdensome on government (taxpayers).  People ought to care for their own property through routine inspection.  The statute of limitations runs for seven full years.  During this time, any tax payment by the owner restarts the AP clock, so the diligent owner suffers no risk.  Furthermore, many owners who otherwise would not care and who abandoned the property anyway, such as because of foreclosure, will simply get jealous and protest for that reason alone, causing unnecessary trouble and expense for the AP and occupant.  By this measure the Legislature intentionally stirs up trouble needlessly, TO NOBODY's BENEFIT and to everybody's detriment.  AP becomes vitally important as a means of housing the millions of homeless in the 1.6 million vacant Florida residences.  This notification interferes with that, to no good end.  It hurts the community and the state.  If the state requires notice to the owner of AP, then it ought to force the owner to remain in the property throughout foreclosure, so the property does not become run down from neglect and become a danger to the community (drug dealer houses) and future occupants (mold and mildew) and reduce community property values.

   4. Put information of AP on the tax roll - ok

   5. Authorizing tax collector not to send a notice of minimum tax due on AP without color of title - absolutely not.  THe tax collector thereby cheats the APer out of proper notice in the transparent hope that the APer will forget to pay the taxes when due, and thereby drag out the AP process.  APers clearly stand subject to property tax.  APers have the right to a notice through tax bill just like owners of record do.  After all, filing the AP return provides RECORD of adverse interest in the property, and only a court can sort out the various factors and decide the rightful owner.  The tax collector has no business interfering in this or stirring up trouble.

   6. Giving owner priority (over APer) of right to pay tax.  Absolutely not.  The County offers all kinds of incentives to people for paying property taxes early, and the APer should have that same right to save by early payment.  Whoever makes payment first after the first notice of tax due or of opportunity for early payment discount gets credit for making that payment.  The law should require that if the APer pays the tax first.  After all, this tax thing runs for SEVEN YEARS.  The sincere owner can pay the tax first NEXT year.

   7. The law should stipulate that every time the owner pays tax first, it restarts the statute of limitations clock, but ONLY IF the owner repays tax plus standard interest to the APer for all the years the APer paid first.  The law should favor the one who pays taxes when due, or when noticed in case of an early pay discount.  Remember why AP happens.  The owner has become derelict  and has refused to put the land to its highest, best use, the ultimate benefit of land ownership to the society.  Remember also that eminent domain proves people don't really have a solid RIGHT to realty, even after they spend their money on it and keep it in the family for hundreds of years.  In keeping with this principle, government has the right to determine the highest best use of realty, and without question, leaving farmland fallow for a decade or a house abandoned for years does NOT benefit the community or put the land to good use.  Generally, the APer does what the owner refuses to do, so the government should reward the APer for this by facilitating, not hindering the AP.

   8. The law should require the tax collector to send tax notices both to the owner of record AND the APer.

   9. The law should clarify the PURELY CIVIL nature of AP and make the sheriff leave APers and their guests/tenants ALONE, and not falsely accuse them of theft, fraud, b&e, burglary, and other crimes in order to defeat the AP.  The law should impose a penalty on any law enforcer who harasses an APer or occupant.  In other words, the law should specifically exclude the APer from claim of trespass, B&E, criminal mischief,  burglary, and fraud in connection with the AP so long as the APer does not destroy, steal, or dispose of the realty or parts of it.  It should declare that disposal of trash, junk and chattel remaining behind in abandoned realty does not constitute a crime.  Perhaps the law should require the APer to conduct a thorough and itemized inventory of the remaining chattel and give the owner notice and opportunity to collect or remove it.  It should make provision for abandoned realty, how to determine the owner abandoned it.  What if the owner left a chair or radio behind, or tools in the shed?  What obligation does the APer have to care for and store them?  The bill does not deal with any of these crucial questions.  I believe it makes sense to address the point by declaring that chattel remaining in an abandoned, untended realty becomes the property of the APer.  People should understand the law of AP and the consequences of abandonment.

  10.  In the AP return, require the APer to stipulate the intention to occupy or not occupy the realty.  If not occupy, the APer must stipulate the intended use (such as to rent it out to others).  The AP non-occupant must specify a domicile in Florida for legal service and a number to contact in the event of an emergency.  The law must hold the APer liable for all damage to the property through negligence or intent (other than acts of vandals or other damage beyond the APer's control).  THe law could require the APer to show proof of financial responsibility AND have a bond, like automobile drivers must have.  The law might require an APer to pass a certification test on the proper care and maintenance of a residence.  The state could concoct an AP license and require it of all professional APers (who rent/sublet the place to others).


As for some real-life issues, see my blog at http://bobhurt.blogspot.com.  Note the articles on AP.  In particular, look for Joel McNair.  I have shown there the full documents proving that Sheriff deputies lied in Probable Cause Affidavits they used to get a phony warrant for his arrest.  He had 60 houses in AP at the time and now has upwards of 100.  The Deputies of Hillsborough, Manatee, Pasco, and Sarasota have harassed his "members" and told them not to pay him.  This means he cannot pay the taxes and other fees and expenses of maintenance.  He sends a crew around to mow and maintain the properties for them, so as to make certain that thay son't trash the place.  He has to receive the money in order to afford that service.  


Consider these very recent arrests, apparently a declaration of war by Sheriffs against APers:
  • Sarasota County deputies arrested Joel McNair, twice charging him with grand theft and scheme to defraud, FOR HELPING HOMELESS PEOPLE GET A PLACE TO LIVE.
  • Polk County Sheriff Grady Judd ordered the warrantless arrest of Derrick Hannah for burglary in Lakeland for AP of the house he lived in for a month, and took him away in the midst of trimming his hedges.
  • Marion County deputies arrested Pastor and former deputy Roosevelt Mitchell for criminal mischief while he painted his AP house which the owner had abandoned at least 6 months earlier.
  • Pasco County deputies arrested APer Shalonda Allen of Land O Lakes, accusing her of  grand theft.
  • Hillsborough County deputies arrested APer George Williams of Plant City for fraud.
None of these arrests dealt with the core issue of otherwise homeless people living in decent houses the owners had abandoned.

This law needs to FIX the problems, not by persecuting men like those above and his members, but by persecuting deputies and sheriffs who arrest people like Joel McNair on bogus criminal charges.

PLEASE, Use your influence to Fix this defective bill


PLEASE, Use your influence to Fix this terrible bill


Bob Hurt
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