Tuesday, June 28, 2011

Adverse Possession Nosedives in Florida, with Good Reason

Last April a news article revealed that Polk County, Florida had 800 adverse possessions (APs) of realty registered with the property appraiser there.  Florida Statute 95.16 and 95.18 acknowledge adverse possession as a right or remedy by explaining the minimum requirements for doing it.  Essentially, an Adverse Possessor (APer) must register the AP within a year with the property appraiser, and must take notorious and hostile possession of, pay the taxes for, and cultivate or improve the property for seven years, after which time the owner loses the right to interfere with possession.  The APer MUST notify the owners, holders of both equitable and legal title.  That means the APer has to notify the trustee and possibly all of the certificate holders under a Pooling and Servicing Agreement, a daunting prospect.

The statutes do not say how to do all of this without the sheriff arresting the APer for grand theft, fraud, swindle, breaking and entering, burglary, criminal mischief, and the like.  Traditional AP deals with property boundary issues like building a shed partially on a neighbor's back yard.  Most APers these days take AP of realty abandoned in foreclosure.  The rightful owner, seeing the foreclosure as inevitable, abandons the realty altogether, never intending to return.  I call such people "abandoneers."

The fact:  sheriff deputies in Palm Beach, Polk, Hillsborough, Sarasota, Pasco, and Marion counties have arrested numerous APers for one or more of the above crimes.  As I have reported before, that seems a bit like a white sheriff arresting an African-American driving a Rolls Royce for a faulty U-turn when in reality, the sheriff resents an African-American who drives a car many times finer than the sheriff's own car.  In other words, the sheriff arrested the African-American for "driving while black" but called it "faulty U-turn" so other officials would not see his racial prejudice clearly.

In reality, sheriffs have the obligation to protect owners' property rights, particularly the right of possession, against trespass by interlopers such as APers. So the comparison to arrests for driving while black doesn't seem quite fair.

How the Government Harasses the Adverse Possessor of Foreclosure-Abandoned Realty

Typically, sheriff deputies will do the following:
  1. Obtain the AP registration from the property appraiser
  2. Visit the realty to meet and interview the occupant. 
  3. Tell occupant, if not the APer, that the APer has no right to charge rent, doesn't own it,a nd the occupant does not have to pay the APer at all.
  4. Visit and interview the abandoneer
  5. Tell the abandoneer that the occupant can cause all kinds of damage for which the abandoneer will stand responsible
  6. Ask the abandoneer to sign a trespass warning
  7. Serve the warning or the occupant and order the occupant to move
  8. Arrest the APer for one of the above crimes
In some counties, sheriffs seem more tolerant and lenient.  They might, for example, simply tell the APer to move but not arrest the APer.

In others they and the prosecutor apply such relentless pressure as to drive the APer to a plea bargain or suicide. 

  • In Palm Beach County in early December 2010, APer Mark Guerette accepted a felony conviction in order to get probation.  That conviction will affect him adversely for life.  
  • In Sarasota County, official persecution drove APer Joel McNair to suicide on 29 May 2011 after releasing him from 2 arrest warrants for grand theft on $120,000 bond.  That might affect him into eternity.  
  • Two weeks ago APer George Williams left Hillsborough County Jail on $40,000 bond after 3 months' incarceration on 12 charges (including grand theft and scheme to defraud) related to AP of 9 properties, 5 of which Williams had improved but into which he had not put a tenant.  
  • The sheriff in Sumter County forced an APer woman out of an AP house after she had spent $3500 fixing it up.  Today a judge in the Circuit Court denied her motion to intervene in the foreclosure case related to the AP realty.  A small claims court dismissed her complaint against the owner for the $3500 for "failure to state a cause of action for which relief can be granted."  You see, she did not have a contract with the owner for improving the property.

Clearly, AP poses a serious impediment to the prosperity and liberty of APers of abandoneer realty.

Questions to Ask the Court about Adverse Possession

I have speculated that APers, before they AP, should file declaratory judgment actions in the local Circuit to determine their rights related to adverse possession.  The court should answer such questions as:
  1. Doesn't the existent of AP laws presume I have the right to take adverse possession without interference from government?
  2. Didn't we all inherit from England the right to take AP of abandoned realty?
  3. Does the sheriff have the constitutional authority to arrest me for AP and call it grand theft, etc, or does that arrest violate my constitutional rights?
  4. Doesn't the sheriff violate my rights to privacy by stirring up the abandoneer against me for AP of the abandoneer's realty?
  5. Doesn't abandonment of realty give anyone the right to take possession of it, finders keepers, like possessing a mink coat thrown in a public dumpster?
  6. Does abandonment of foreclosure realty give the mortgage holder the owner's equitable title?
  7. If the above right exists, doesn't that undercut the 7 year statute of limitations for AP?
All these questions might seem sensible, but for one little troublesome fact: 

  • The constitutions of the US and all the states consider the owner's right to possession of the owned realty inviolate by the public.

Many Ways to Lose Ownership of Realty

Well, truthfully, owners can lose their "owned" realty for a variety of reasons, such as
  • foreclosure of a mortgage loan or other contract in which the realty served as collateral;
  • bankruptcy;
  • non-payment of property or other taxes;
  • eminent domain (taking by government);
  • adverse possession;
  • probate court for those who die intestate;
  • Conquest and seizure by a foreign or domestic power (remember William the Bastard's conquest of England in 1066?).

Thus, if you can grab it and keep it with physical force, it belongs to you.  But in all those situations, ONLY due process empowers a lawful and peaceful transfer of realty. 

And so, the constitutions and laws favor the owner of record.  If an APer complies with all the rules and the owner does not protest, the APer gets to keep the realty.  But in spite of compliance, if the  owner of record protests prior to the expiration of the statute of limitation, the government has the duty to assist the owner in removing the interloper from the realty. 

Why It Makes No Sense to Take Adverse Possession of Realty Abandoned in Foreclosure

In foreclosure, the lender or assignee, having legal title to the subject realty, cares enough about the realty to foreclose the loan and force a foreclosure sale of the realty to pay the loan balance.  Such realty does not favorably compare to a stretch of ignored arrable land on some huge country estate that a family might occupy and cultivate because the owner simply does not care.  In foreclosure, the lender really does care, and MUST get the realty sold to cover the note.  So it makes little sense to take adverse possession of it because the APer won't get to stay there long.

Joel McNair depended on that fact for his enterprise to work.  If the owner complained, he simply got his crew to move his "member" occupant of the AP realty to another AP realty.  He had upward of 100 houses in AP, just as Mark Guerette had.  But the sheriff deputies arrested McNair repeatedly and the State Attorney seemed determined to prosecute him.  So in the end, the scheme made no sense.

Furthermore, as I have conjectured, the court might deem that abandonment in foreclosure doesn't put the realty up for grabs, but rather devolves equitable title to the mortgagee. 

Thus, AP of realty abandoned in foreclosure constitutes a transparent tactic to possess the property only until the foreclosure goes through and the court issues a writ of possession to eject the APer or APer's renter.  That makes it a bad tactic, particularly given the likelihood that a sheriff deputy will force the APer or renter out anyway under trespass law.

A Bad Idea

SO, AP of realty abandoned in foreclosure puts both the APer and the APer's renter in harm's way.  Either the equity owner or legal owner will get the sheriff or court to eject the occupant and possibly arrest the occupant and/or the APer.  Either or both could face felony charges and a long jail term.   For that reason I discourage taking adverse possession of realty abandoned in foreclosure.  Messing with someone else's property constitutes a really bad idea...

...unless you have a really big army to back you up.

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