Wednesday, April 13, 2011

Where and What is the English Law of Florida?

Dear Florida Senator Dennis Jones and Representative Ed Hooper:

Florida Statute 2.01 provides that the English Law of Florida still has force and effect:


"The common and statute laws of England which are of a general and not a local nature, with the exception hereinafter mentioned, down to the 4th day of July, 1776, are declared to be of force in this state; provided, the said statutes and common law be not inconsistent with the Constitution and laws of the United States and the acts of the Legislature of this state."
We Floridians have a serious problem with the above statute: 

The Florida Legislature has failed to elucidate the English Law of Florida to the people. 

If you know the content of the English Law of Florida or where I can find it to read it, please tell me.  In other words, what and where is the English Law of Florida?

Allow me to give you a pertinent issue with and question about Florida's English Law:  adverse possession (see Florida Statutes 95.12 et seq, particularly 95.16 and 95.18, see below).

Sheriffs and prosecutors in a variety of Florida counties have harassed, arrested, and prosecuted people for adverse possession.  No law makes adverse possession a crime.  So the sheriffs arrest adverse possessors for trespass, breaking and entering, criminal mischief, burglary, grand theft, swindle, fraud, scheme to defraud, and even brokering without a license.  That, to me, seem equivalent to arresting an African American for "driving while black."

Florida Statute Chapter 95 clearly acknowledges the right to take adverse possession of realty.  Numerous law review articles, including the Harvard Law Review, Volume XXXII of November 1918, page 135, Title by Adverse Possession, point out that we inherited adverse possession as a right from English Law as far back 500 to 600 years.  Florida law merely describes a means of exercising adverse possession, but gives no historical detail about the fact that it constitutes a civil right AND that it puts possession of the realty squarely into a civil, and not a criminal, jurisdiction.

Because we do not have or know the English law of Florida, and its provisions regarding adverse possession, we cannot use the courts to protect us from outrageous arrests by sheriffs who thereby violate our adverse possession rights.

Right now the Florida Legislature has house and senate bills intended to suppress adverse possessors by making it a felony to falsify the notice of adverse possession, and increase cost to government by requiring the property appraiser to notify the owner of record of the adverse possession.

Take note that the Legislature aims this effort to sanctify official government oppression of adverse possessors directly at those who adversely possess realty abandoned because of foreclosure.  Property appraisers inform sheriffs of the adverse possession when the adverse possessor files the required notice.  The sheriff contacts the owner of record and stirs the owner up by saying the owner will stand responsible for damage the adverse possessor does to the realty.  The owner then asks the sheriff to remove the adverse possessor for trespass.  The sheriff does so EVEN after a month or more of adverse possessor occupancy.

I have a big problem with such government interference into the lives of people, both owners and adverse possessors alike.  The constitutions do not empower government to violate ARticle I Section 23 of the Florida Constitution for such reasons.  That section provides:

Right of privacy.Every natural person has the right to be let alone and free from governmental intrusion into the person’s private life except as otherwise provided herein. This section shall not be construed to limit the public’s right of access to public records and meetings as provided by law.

In virtually every case of such adverse possession, the owner has fled from the realty and the responsibility to the community and mortgagee to maintain the realty in good condition.  Such flight violates paragraph 7 of the standard Fannie Mae/ Freddie Mac Form 3010 mortgage security instrument:


7. Preservation, Maintenance and Protection of the Property; Inspections. Borrower shall not destroy, damage or impair the Property, allow the Property to deteriorate or commit waste on the Property. Whether or not Borrower is residing in the Property, Borrower shall maintain the Property in order to prevent the Property from deteriorating or decreasing in value due to its condition. Unless it is determined pursuant to Section 5 that repair or restoration is not economically feasible, Borrower shall promptly repair the Property if damaged to avoid further deterioration or damage. If insurance or condemnation proceeds are paid in connection with damage to, or the taking of, the Property, Borrower shall be responsible for repairing or restoring the Property only if Lender has released proceeds for such purposes. Lender may disburse proceeds for the repairs and restoration in a single payment or in a series of progress payments as the work is completed. If the insurance or condemnation proceeds are not sufficient to repair or restore the Property, Borrower is not relieved of Borrower’s obligation for the completion of such repair or restoration.
Lender or its agent may make reasonable entries upon and inspections of the Property. If it has reasonable cause, Lender may inspect the interior of the improvements on the Property. Lender shall give Borrower notice at the time of or prior to such an interior inspection specifying such reasonable cause.

Moreover, it puts the realty, community, and future occupants in danger that mold, termites, pests, acts of nature, vandals, thieves, and drug dealers will infest the realty and diminish the value of it and the neighborhood.

Thus, adverse possessors of such realty do the owner, the mortgagee, the community, the house, and future occupants a big favor.  Sheriffs repay them by arresting them on trumped up, bogus charges, and they nearly universally falsify probable cause affidavits used to obtain inapplicable arrest warrants.

The notice of adverse possession distinguishes an adverse possessor from a squatter, ESPECIALLY in the case of abandoned realty.

It signifies to the property appraiser (and thus to the sheriff) that the adverse possessor intends to stay in possessory dominion over the realty for the statutory period.
It constitutes the realty equivalent of dumpster diving for cast-off chattel. 

Please don't take this point lightly.  Cast-off, abandoned realty signifies an intention forever to quit the realty and never to return to it as an owner and never to exercise possessory dominion over it again.  This equivalates to throwing an expensive car or mink coat in the dumpster.  THAT ACT puts the realty up for grabs just as does casting chattel into the dumpster.  Whoever comes and retrieves it and cares for it has a right to it.  THAT much, the adverse possession law makes clear.

Taking adverse possession of abandoned realty operates similarly to claiming that car or mink coat from the dumpster.  In effect the owner has said "I don't want it, so you take it if you want it."  Filing notice of adverse possession constitutes the staking of claim to the realty, and it constitutes the establishment of a real property right interest.

Unfortunately, our laws do not make it clear that an adverse possessor has the right to intervene in a foreclosure process under Florida rule of civil procedure 1.230.  Nor does it clarify that if he prevails in the foreclosure defense he has the right of title to the realty the rightful owner abandoned.  The rule provides:

1.230 Interventions. Anyone claiming an interest in pending litigation may at any time be permitted to assert a right by intervention, but the intervention shall be in subordination to, and in recognition of, the propriety of the main proceeding, unless otherwise ordered by the court in its discretion
Florida statutes do not provide equity relief for an adverse possessor who maintains abandoned realty of which the owner retakes possession after some months or years.  The law should require the owner to compensate the adverse possessor for all maintenance, improvement, taxes, home owner association dues, and the like. 

Perhaps Florida's English Law addresses the above sticky issues.  If it does, how shall the people of Florida ever know?

The Florida Legislature, in failing to publish the English Law of Florida electronically and in book form, has constructively destroyed access of Florida's people to the law and its protections, making both unknowable.

I ask that you use your influence to get such a published version in circulation.

Whether or not you do that, I ask that you tell me what constitutes the English Law of Florida and where I might find it.

Sincerely,


--
Bob Hurt        My Blog
2460 Persian Drive #70
Clearwater, FL 33763
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References

2.01 Common law and certain statutes declared in force.The common and statute laws of England which are of a general and not a local nature, with the exception hereinafter mentioned, down to the 4th day of July, 1776, are declared to be of force in this state; provided, the said statutes and common law be not inconsistent with the Constitution and laws of the United States and the acts of the Legislature of this state.
2.04 Repealed statute not revived by implication.No statute of this state which has been repealed shall ever be revived by implication; that is to say, if a statute be passed repealing a former statute, and a third statute be passed repealing the second, the repeal of the second statute shall in no case be construed to revive the first, unless there be express words in the said third statute for this purpose.
History.Nov. 2, 1829; RS 62; GS 62; RGS 74; CGL 90.


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.
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.

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.
95.191 Limitations when tax deed holder in possession.When the holder of a tax deed goes into actual possession of the real property described in the tax deed, no action to recover possession of the property shall be maintained by a former owner or other adverse claimant unless the action commenced is begun within 4 years after the holder of the tax deed has gone into actual possession. When the real property is adversely possessed by any person, no action shall be brought by the tax deed holder unless the action is begun within 4 years from the date of the deed.
History.s. 64, ch. 4322, 1895; GS 591; s. 61, ch. 5596, 1907; RGS 794; s. 2, ch. 12409, 1927; CGL 1020; ss. 1, 2, ch. 69-55; s. 1, ch. 72-268; s. 28, ch. 73-332; s. 1, ch. 77-174.
Note.Former ss. 196.06, 197.725, 197.286.
95.192 Limitation upon acting against tax deeds.
(1) When a tax deed has been issued to any person under s. 197.552 for 4 years, no action shall be brought by the former owner of the property or any claimant under the former owner.
(2) When a tax deed is issued conveying or attempting to convey real property before a patent has been issued thereon by the United States, or before a conveyance by the state, and thereafter a patent by the United States or a conveyance by the state is issued to the person to whom the property was assessed or a claimant under him or her, and the tax deed grantee or a claimant under the tax deed grantee has paid the taxes for 4 successive years at any time after the issuance of the patent or conveyance, the patentee, or grantee, and any claimant under the patentee or grantee shall be presumed to have abandoned the property and any right, title, and interest in it. Upon such abandonment, the tax deed grantee and any claimant under the tax deed grantee is the legal owner of the property described by the tax deed.
(3) This statute applies whether the tax deed grantee or any claimant under the tax deed grantee has been in actual possession of the property described in the tax deed or not. If a tax deed has been issued to property in the actual possession of the legal owner and the legal owner or any claimant under him or her continues in actual possession 1 year after issuance of the tax deed and before an action to eject him or her is begun, subsections (1) and (2) shall not apply.

History.s. 27, ch. 73-332; s. 201, ch. 85-342; s. 524, ch. 95-147.
95.21 Adverse possession against lands purchased at sales made by executors.The title of any purchaser, or the purchaser’s assigns, who has held possession for 3 years of any real or personal property purchased at a sale made by an executor, administrator, or guardian shall not be questioned because of any irregularity in the conveyance or any insufficiency or irregularity in the court proceedings authorizing the sale, whether jurisdictional or not, nor shall it be questioned because the sale is made without court approval or confirmation or under a will or codicil. The title shall not be questioned at any time by anyone who has received the money to which he or she was entitled from the sale. This section shall not bar an action for fraud or an action against the executor, administrator, or guardian for personal liability to any heir, distributee, or ward.
History.s. 1, ch. 3134, 1879; RS 1293; GS 1724; RGS 2938; CGL 4658; s. 1, ch. 20954, 1941; s. 3, ch. 22897, 1945; s. 15, ch. 74-382; s. 1, ch. 77-174; s. 525, ch. 95-147.
95.22 Limitation upon claims by remaining heirs, when deed made by one or more.
(1) When any person owning real property or any interest in it dies and a conveyance is made by one or more of the person’s heirs or devisees, purporting to convey, either singly or in the aggregate, the entire interest of the decedent in the property or any part of it, then no person shall claim or recover the property conveyed after 7 years from the date of recording the conveyance in the county where the property is located.
(2) This section shall not apply to persons whose names appear of record as devisees under the will or as the heirs in proceedings brought to determine their identity in the office of the judge administering the estate of decedent.

History.s. 1, ch. 10168, 1925; CGL 4659; s. 14, ch. 20954, 1941; s. 15, ch. 73-334; s. 16, ch. 74-382; s. 526, ch. 95-147.
95.231 Limitations where deed or will on record.
(1) Five years after the recording of a deed or the probate of a will purporting to convey real property, from which it appears that the person owning the property attempted to convey or devise it, the deed or will shall be held to authorize the conveyance or devise of, or to convey or devise, the fee simple title to the real property, or any interest in it, of the person signing the instrument, as if there had been no lack of seal or seals, witness or witnesses, defect in acknowledgment or relinquishment of dower, in the absence of fraud, adverse possession, or pending litigation. The instrument shall be admissible in evidence.
(2) After 20 years from the recording of a deed or the probate of a will purporting to convey real property, no person shall assert any claim to the property against the claimants under the deed or will or their successors in title.
(3) This law is cumulative to all laws on the subject matter.

History.ss. 1, 2, ch. 10171, 1925; CGL 4660, 4661; ss. 1-4, ch. 21790, 1943; s. 35, ch. 69-216; s. 17, ch. 74-382.
Note.Former ss. 95.23, 95.26.

1 comment:

Bob Hurt said...

Furthermore, This Florida Bar Journal article shows how to find and apply the Law of England prior to 4 July 1776:

https://www.floridabar.org/divcom/jn/jnjournal01.nsf/Author/E9732A870D22810185257250007C9B0B