Sunday, March 11, 2012

More Adverse Possession Strategy - Effect of Mortgage on foreclosure-abandoned house

If you take adverse possession of a house abandoned in foreclosure, also take heed of section 9 of the mortgage so you will understand the mortgagee's options.



Section 9 of the standard Florida single family mortgage provides:



Protection of Lender's Interest in the Property and Rights Under this Security Instrument.  If (a) Borrower fails to perform the covenants and agreements contained in this Security Instrument, (b) there is a legal proceeding that might significantly affect Lender's interest in the Property and/or rights under this Security Instrument (such as a proceeding in bankruptcy, probate, for condemnation or forfeiture, for enforcement of a lien which may attain priority over this Security Instrument or to enforce laws or regulations), or (c) Borrower has abandoned the Property, then Lender may do and pay for whatever is reasonable or appropriate to protect Lender's interest in the Property and rights under this Security Instrument, including protecting and/or assessing the value of the Property, and securing and/or repairing the Property.  Lender's actions can include, but are not limited to: (a) paying any sums secured by a lien which has priority over this Security Instrument; (b) appearing in court; and (c) paying reasonable attorneys' fees to protect its interest in the Property and/or rights under this Security Instrument, including its secured position in a bankruptcy proceeding.  Securing the Property includes, but is not limited to, entering the Property to make repairs, change locks, replace or board up doors and windows, drain water from pipes, eliminate building or other code violations or dangerous conditions, and have utilities turned on or off.  Although Lender may take action under this Section 9, Lender does not have to do so and is not under any duty or obligation to do so.  It is agreed that Lender incurs no liability for not taking any or all actions authorized under this Section 9.

Any amounts disbursed by Lender under this Section 9 shall become additional debt of Borrower secured by this Security Instrument.  These amounts shall bear interest at the Note rate from the date of disbursement and shall be payable, with such interest, upon notice from Lender to Borrower requesting payment.

If this Security Instrument is on a leasehold, Borrower shall comply with all the provisions of the lease.  If Borrower acquires fee title to the Property, the leasehold and the fee title shall not merge unless Lender agrees to the merger in writing.




The mortgagee might act to secure its interest in the abandoned realty, including entering the place, preserving it, and locking it down.


What can an adverse possessor do about this?  Well first of all, consult a competent attorney.  Then consider any of the following:


1.   Get a quitclaim deed from the owner

2.   Get an agreement from the owner to compensate you a token amount for preserving the property (but not necessarily for you to live there), and cover your out of pocket expenses via a liens on the property.

3.   Notify the Mortgagee that you have taken adverse possession and have properly cared for and maintained the property – you could include a copy of photos, work orders, money spent, etc.

4.   Post "POSTED:  NO TRESPASSING.  Under Adverse Possession."  signs in the windows aiming outward so a casual visitor will know the status of the property.


How will the mortgagee determine that the owner has abandoned the property?  The condition of the property will tell the story.  An occupied property will show a properly maintained lawn, and other typical evidence of occupancy.  This should keep the mortgagee away.


If the Mortgagee sends a property preservation agent into the property, that agent might steal the adverse possessor's chattel and change the locks and turn off the utilities, etc.  The posted sign should keep them away, but if it doesn't, the adverse possessor should have surveillance cameras aiming down the street to see license number, and aiming out front and back doors to see who approaches.  Adverse possessors can purchase such systems that record attempts to enter the property.


What if the Cops Arrive and "Investigate"


I consider any entry on the property for unwarranted investigation by cops and sheriff as trespassing  if the adverse possessor and owner do not invite them in.  A report of adverse possession does not justify any investigation, in my opinion.


These sections of Article I of the Florida Constitution spell out certain rights and make the point that you may have many rights not enumerated in the constitutions, and that government must respect them (section 1). 


SECTION 1. Political power.—All political power is inherent in the people. The enunciation herein of certain rights shall not be construed to deny or impair others retained by the people.


Section 2 shows you have the right to acquire, possess, and protect property, and receive rewards for industry.  Florida Statutes on adverse possession (95.16 and 95.18) seem clearly to imply that you have the right to take adverse possession of property.


SECTION 2. Basic rights.—All natural persons, female and male alike, are equal before the law and have inalienable rights, among which are the right to enjoy and defend life and liberty, to pursue happiness, to be rewarded for industry, and to acquire, possess and protect property; except that the ownership, inheritance, disposition and possession of real property by aliens ineligible for citizenship may be regulated or prohibited by law. No person shall be deprived of any right because of race, religion, national origin, or physical disability.


9 suggests that since no one can compel you to become a witness against yourself.  I WOULD NOT MAKE ANY STATEMENTS TO cops or sheriffs or other government employees, WHATSOEVER, unless the employee shows a crystal clear law obliging me to make statements, about ANYTHING on my property (including adversely possessed property), especially my identity, what property belongs to me, my right to occupy the house, why I am there, my driver license, or the time of day, because ANYTHING I SAY CAN BECOME EVIDENCE AGAINST ME.  I would not even say something like "I have a right to be here" or "I'm not doing anything wrong."


Instead, I would demand to know the inquirer's identity, name, badge number, see evidence of identity, license number, purpose, and after taking the inquirer's photo and videographing the meeting using eyeglass camcorder, I would ask (lovingly) "So will you leave my property now, or shall I call your superiors?"


SECTION 9.Due process.No person shall be deprived of life, liberty or property without due process of law, or be twice put in jeopardy for the same offense, or be compelled in any criminal matter to be a witness against oneself.


Section 23 spells out your standard expectation  that government should not intrude into your life "except as otherwise provided herein".  You might show this to the investigator and ask to see the "constitution's otherwise provisions," and when the investigator cannot show you, ask the investigator to leave.



SECTION 23.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.



I always try to remember that if I yield my rights, people in government will sooner or later take unfair advantage.  So I always try to remember to ask for a demonstration of authority IN WRITING when somebody from government attempts to intrude into my private life.


And that means I stand within my rights to demand of those in authority to show me proof of their authority or cease intruding into my life and to go on their way.


Government employees often interpret any failure to stand up for one's rights as a waiver of those rights.  I inform government employees "I do not waive any of my rights, and I demand that you respect my rights" whenever a government employee seems to exceed authority under color of law.






WARNING:  I do NOT function as  law practitioner, lawyer, licensed attorney-at-law, or legal advisor.  Construe my comments ONLY as speculation or general information, and NOT as legal advice for you or anyone else.  Consult a well-qualified attorney (good luck finding one) in all questions of legality or law.


Bob Hurt


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