From: Jeff
Sent: Thursday, May 05, 2011 9:38 AM
Subject:
Bob,
I have just been perusing your Lawmen 4314 on Adverse Possession.
You keep making one obvious error in your statements, possibly in your thinking. The 7 year issue is not a "limitation." It is a legal REQUIREMENT. No court would issue title under AP until that seven year requirement of continuous AP is met.
Jeff
Dear Jeff:
Referring to my article at http://bobhurt.blogspot.com/2011/05/florida-adverse-possession-strategy.html ...
Thank you for sharing your considerations with me. I asserted the 7-year requirement as a limit because chapter 95 deals with statutes of limitations, and 7 years constitutes the LIMIT of time during which an owner of record may evict an adverse possessor. After that limit expires the owner may still sell or transfer the realty, but neither the owner nor the owner’s heirs or assigns may ever again exercise any possessory dominion over it.
However, I believe the points I made justify ignoring that limit when the owner of record does not merely ignore or wander from the realty but actually abandons and effectively throws it in the realty dumpster, such as many owners do because they face foreclosure, have no defense against it, believe they will lose the realty forever in a foreclosure sale, and see no point in fighting against it only to delay the inevitable loss of the realty. I refer to such owners as abandoneers.
Take the time to browse through this article which appeals to government to “show me the English Law of Florida.” In it you will see an excellent Florida bar article that makes two salient points:
1. The Legislature may not remove a common law right (like AP) without providing a suitable substitute. Kluger v. White, 281 So. 2d 1 (Fla. 1973) and Smith v. Dept. of Insurance, 507 So. 2d 1080 (Fla. 1987).
2. The Supreme Court made common law, so it can change common law to accommodate the needs of an evolving society. Hoffman v. Jones, 280 So. 2d 431 (Fla. 1973).
Of course, Supreme court means ANY court that can hear a common law issue like Adverse Possession. Any court can rule on the matter in a non-customary way, and the appeal process may or may not reach a supreme tribunal, and it will bind lower courts.
The LAW of AP consists of two overlapping subsets:
1. English law overridden by Florida law, constitutions, etc
2. English law not overridden by Florida law, constituitions, etc.
3. Florida law (including the constitutions)
I maintain that we do not know items 1 and 2 above, and of them, item 2 has potentially profound relevance, particularly regarding AP. The Legislature owes the people of Florida a compilation of the extant English Law of Florida. But since we don’t have it, we must guess and conjecture about it.
Florida AP law does not create the right of AP. We might as well consider AP an unenumerated constitutionally guaranteed right nestled unobtrusively among the rights to privacy, freedom from unlawful government intrusion into lives, access to courts, due process, accumulate property, pursue happiness, and enjoy the fruits of our labors. But I believe English law for the past 600 years has embraced AP, and our right to it gets enumerated there, to the extent it suited the needs of English society.
We have a brand new AP need, that of residences for people cast from their homes by the financial crisis. Realty abandoned in foreclosure can supply that need without harm to the realty, owner, or mortgagee, and that will also help those as well as the community and government. So, the courts have the power and we have the right to demand a change in the common law right of AP. Changes in society warrants the following change in interpretation of the statute of limitations on adverse possession:
the assistance of the court to confer title of realty abandoned in foreclosure to the “adverse possessor” IMMEDIATELY (without waiting 7 years), for four reasons:
1. The owner threw the realty in the dumpster, discarded it, abandoned it (all mean the same thing) and no longer wants anything to do with it; ergo, possession by a finder of the abandoned realty does not have an adverse nature.
2. Society desperately needs a housing solution which AP can provide.
3. The seven year limit no longer serves a useful purpose for realty abandoned in foreclosure.
4. Sheriffs have chilled Prospective APers exercise of the right to take AP, by arresting APers for bogus crimes like grand theft
We must see the laws as harmonious with one another. But I believe the Legislature did not consider this aspect of AP that no longer justifies the 7-year limit, or ANY limit, in fact. The Legislature (and English law) only set the limit to protect owners who intended to keep their realty. So, the 7-year limit applies only to those people. But it DOES NOT APPLY to people who want to give their realty away through abandonment, such that another possessor of it cannot possess it adversely because the owner of record poses no opposition and no possibility of opposition to possession or title by the new possessor.
In the case of abandoneers, the 7-year limit becomes an albatross around their necks, as though the Legislature might have intended to FORCE them to remain attached to their realty even though they have run away, stayed away, stopped paying taxes and dues, stopped maintaining and improving it, left it accessible to thieves, vandals, and drug dealers, removed their chattel, and never intend to return or engage in any transactions regarding the realty, not ever, all the way to eternity, maybe even to the limit of infinity. We must reasonably presume the Legislature had no intent to so burden the abandoneer.
For the above reasons, I have encouraged adverse possessors to stare straight into the face of the beasts of the sheriff’s office and courts, demanding a new interpretation of adverse possession law, one that concludes the seven year limit does not apply to abandoneer’s realty. I have outlined some prospective topics for injunction and declaratory judgment to that end. Maybe the considerations above will give a new perspective on them.
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