Why Florida's Adverse Possession Law is Unfair and Unconstitutional in 2014
I think it important, when one contemplates adverse possession of realty, to do more than merely to ask an attorney what he thinks about adverse possession. The attorney and the inquirer should carefully research prior to answering so as to know what the courts think of it. Unfortunately, too few attorneys have experience with the type of adverse possession about which I write, that of real estate which the owner has abandoned because of foreclosure. The owner knows he will eventually lose the house, and servicer's preservation thugs start harassing the owner at some point, so the owner packs up and leaves for good. Opportunists see that as an opportunity to squat in the place and maybe win it by adverse possession.
Hey, it could happen. The bank might get a final judgment of foreclosure of an owner-abandoned property where an adverse possession squatter lives, then get the court to set it aside because the preservation crew said it was in wretched shape. But the adverse possessor moved in and cleaned it up and made repairs. Maybe the owner will return to claim it. Maybe not.
That constitutes our issue of primary concern in these days where a 1.5 million residences lie vacant in Florida, may of them apparently abandoned and left to vandals and ruination. Those could become good residences for people willing to go through the pain of adverse possession requirements. We should consider the opinions of courts of prime importance in the matter of adverse possession.
I have appended a case opinion below regarding an adverse possession dispute over ownership of a pond. It has nothing to do with adverse possession of real estate which the owner abandoned in foreclosure.
The courts clearly favor the owners in adverse possession disputes. This explains why sheriffs and prosecutors so gleefully lock up squatters for grand theft who attempt adverse possession of foreclosure-abandoned residences. As the below opinion shows, the courts hold adverse possession claimants to very high standards of proof. To BEGIN WITH, they MUST NOTIFY the owner of possession of the property. Many squatters start off by ignoring that requirement. New laws (enacted since the below opinion) require the property appraiser to notify the owner of the adverse possession. That becomes impossible when the owner has intentionally vanished and run off to a foreign land without leaving a forwarding mail or email address or phone number. And that constitutes a core fault with the below opinion as applied to adverse possession of realty abandoned in foreclosure. The squatter has no way of knowing how to contact the owner. That means the squatter must do it by notification in a newspaper partly devoted to publication of legal notices.
I have scoured Google Scholar for Florida appellate opinions related to adverse possession in conjunction with criminal charges of grand theft, the charge sheriffs and prosecutors seem to prefer, but in my opinion absolutely cannot prove. I have found nothing. Presently, prosecutors BASH adverse possessors with charges of grand theft, and sheriffs and cops arrest without even seeing an affidavit of probable cause in support of a questionable warrant for arrest. They simply seem to HATE opportunist squatters who take steps to live in a nice house the owner abandoned in foreclosure.
If you want to read further considerations on this issue send email to adversepossession+subscribe@googlegroups.com, and then visit the group archives once you get signed up.
Meanwhile exercise your voting rights to correct the adverse possession laws. If owners continue to abandon realty, then the legislature should impose penalties on them and provide some way to put those residences to good use during the foreclosure litigation process, and penalize mortgagees for dragging out foreclosures without having the properties occupied. Perhaps counties should take the properties by eminent domain that sit vacant for more than 3 months, and rent them out for their costs of maintenance and supervision, and return them after the court disposes of the property and a new occupant comes to live in it. I consider this the best way to care for abandoned homes.
Remember: when prosecutors and law enforcers persecute people for exercising their common law rights, the only practical solution lies in the political method - creating changes in law to punish persecutors and to adjust and clarify rights. Adverse possession has a history 600 years deep in Anglo-American statutory and common law. It began when common people lived off the land and took untended portions of wealthy landowners' neglected property to produce crops, livestock, and derivatives. They paid a portion of that to the King's tax collectors. And therefore, they put the land to its highest, best use. Only if the owner asked to have the squatter removed would the King allow interference with the squatter. And then the King would expect the owner to continue paying taxes for use of that parcel of land. But in those days little or no harm came to a community because the owner let the land lie fallow.
Nowadays city dwellers generally earn their livings from employment having nothing to do with their residences. And they pay taxes from their income, not from husbandry and agriculture. Furthermore, homes abandoned or neglected through foreclosure cause great harm to the community, because of the negligence of both the owner and the mortgagee, and also because of the length of time the courts require to handle the avalanche of foreclosures. The Legislature has failed to make accommodations for these cultural and business phenomena. It has made the adverse possession process more burdensome, but it has imposed no penalties (like jail time or fines or pre-emptive eminent domain) upon either the mortgagor who abandoned the property or the mortgagee who lets the property go to ruin during foreclosure delays lasting half a decade and more.
Because of the difference in taxation, the mortgagor usually pays the taxes through the servicer and escrows the monthly amount from mortgage payments necessary to retire the tax obligation annually. No law requires this. The mortgage stipulates it, but that should not impact the tax collector. If the mortgagor abandons the property and stops paying taxes and someone squats there in contemplation of adverse possession and cannot pay the taxes because the tax collector returns payments, accepting instead the mortgagor's, then the tax collector and the courts should consider that payment a form of compliance by the squatter who has filed the requisite adverse possession documents, for the mortgagee knows full well that the mortgagor has stopped making payments. In any case should a dispute over this arise, only a court should settle it.
Florida's latest incarnation of adverse possession law in 95.18 (appended immediately below) contains certain absurdities that cause readers to conflate its meanings, and that has severely chilled exercise of the common law right of adverse possession. I shall point out the areas that I think might not stand up to a challenge of constitutional or other rights guarantees.
1 reads "under a claim of title exclusive of any other right." This seems like nonsense to me, for a person who does not own the property (and has no title to it), cannot claim title except by a quiet title action or inheritance or court-ordered forfeiture of a prior title holder. And even a mortgagee has no actual title to the property, so if a squatter fulfills the requirements of adverse possession, perhaps a court would determine that the mortgagee must forfeit the claim. But since the mortgage operates as a lien, perhaps the court would declare that the lien still exists and the adverse possessor may not dispose of the property without discharging the mortgagor's debt, or that the mortgagee may enforce the lien through foreclosure sale regardless of adverse possession. In the end, I think it appropriate that the court honor the lien and allow the foreclosure sale to proceed, and the adverse possessor to lose the property just as the owner would had the owner not abandoned the property.
In any case, the foregoing quoted language seems to make adverse possession impossible because squatters never have proper claim of title.
1a makes no sense to require the adverse possessor to pay the taxes. ANYONE could pay the taxes. What difference does it make whether the adverse possessor/squatter paid them? For example, the mortgagee could pay them without that counting toward any right of possession.
3d seems absurd to me and it unduly burdens the squatter seeking adverse possession with requirements that violate the squatter's common law right to adverse possession. And requiring a notarized attestation exposes the squatter to risk of prosecution for perjury unnecessarily, since returning the incorrect information would only encumber the consummation of adverse possession. That should suffice to guarantee correct information.
3e extraneously exceeds the needs of the property appraiser, for the squatter already must obey zoning and HOA restrictions or suffer fines, and since the government never required that information of the owner, it violates the squatter's right of privacy under Florida Constituiton Article 1 Section 23.
I have already challenged the principle of 3g with respect to taxes. I makes no difference who pays the taxes if the owner or owner's agent doesn't pay them, and government has no fundamental basis for requiring the squatter to pay them if someone else beside the owner pays them. Furthermore, Florida already has laws governing sale of tax certificates at a premium to investors who thereby pay the taxes. A squatter seeking adverse possession should have the same right to delay paying taxes as the owner does. In Florida that means letting investors pay them (see F.S. 197.432) for two years, and in the third year (see F.S. 197.502) allowing the investor to force a tax deed sale if the owner (or squatter) does not pay those taxes plus the premium. Thus this provision is unfair by virtue of denying equal protection of the law to the squatter and owner, and it is unduly burdensome to the squatter.
4a should relieve the squatter of any requirement to notify the owner that the squatter will occupy the property without permission, and this law should clarify that. If the property Appraiser cannot reach the owner, then it stands to reason the adverse possession squatter cannot either.
4 might seem like a good idea, but it actually makes no sense and imposes an unreasonable burden on the property appraiser that tax payers must pay for. To begin with, the main issue at hand deals with adverse possession of property abandoned in foreclosure. That means the owner RAN OFF and will not receive mail at the address of the property, and might not have left a forwarding address, so as to avoid the hounding by bill collectors. Secondly, the owner owes the community the duty to care for the property, and abandoning it is a clear breach of that duty. If the owner had cared for the property, no squatter would have tried to take it by adverse possession. The abandonment makes it obvious that the owner does not care whether someone squats on the property, or expects the community to take over the owner's responsibility.
9 and 10 operate like an open season hunting license for squatters, and that violates core principles of adverse possession. These two provisions violate Florida Constitution Article I Section 2 basic rights of natural persons. The Legislature had attempted to convert adverse possession into a crime and has thereby violated the common law right of adverse possession without providing a statutory substitute. First of all, a squatter does not trespass by squatting on an abandoned property. If the owner does not care, the Legislature has no business interfering. Secondly, prohibiting rental of a squatted property by imposing a criminal penalty upon the squatter violates the ancient right of usufruct, that right to enjoy the fruit of the land. Rental income does not differ from income derived from sale of fruit harvested from the property's trees, or milk harvested from cows or goats or eggs from fowl on the property, or wild game harvested on the property.
I do not believe the Adverse Possession law in 95.18 will withstand a constitutional challenge. And of course, WHO will raise that challenge when it will cost tens of thousands of dollars to bring it to the Supreme Court of Florida?
In conclusion, I believe the Legislature needs to impose more obligations of proper care upon owners and mortgagees of real estate, and upon the county commissions, so they don't let property go into decline from owner abandonment. I believe adverse possessors don't comprise the best alternative, but they certainly do the property more good than abandonment. Ideally, an owner should notify the county of the abandonment, and the county should repair it and rent it out, charge the fee for repairs to the mortgagee or deduct the fee and expenses from the rental income, and pay the balance to the mortgagee.
Florida Adverse Possession Statute of Limitations (not under color of title)
95.18 Real property actions; adverse possession without color of title.— UNDER PENALTY OF PERJURY, I DECLARE THAT I HAVE READ THE FOREGOING RETURN AND THAT THE FACTS STATED IN IT ARE TRUE AND CORRECT. I FURTHER ACKNOWLEDGE THAT THE RETURN DOES NOT CREATE ANY INTEREST ENFORCEABLE BY LAW IN THE DESCRIBED PROPERTY. THIS RETURN DOES NOT CREATE ANY INTEREST ENFORCEABLE BY LAW IN THE DESCRIBED PROPERTY. The property appraiser shall refuse to accept a return if it does not comply with this subsection. The executive director of the Department of Revenue is authorized, and all conditions are deemed met, to adopt emergency rules under ss. 120.536(1) and 120.54(4) for the purpose of implementing this subsection. The emergency rules shall remain in effect for 6 months after adoption and may be renewed during the pendency of procedures to adopt rules addressing the subject of the emergency rules.
(a) If a person makes a claim of adverse possession under this section against a portion of a parcel of property identified by a unique parcel identification number in the property appraiser’s records:
(a) If a person makes a claim of adverse possession under this section against property to which the property appraiser has not assigned a parcel identification number:
Candler v Watch Omega
CANDLER HOLDINGS LIMITED I, Appellant,
v.
WATCH OMEGA HOLDINGS, L.P., Appellee.
District Court of Appeal of Florida, First District.
1232*1232 William J. Haley of Brannon Brown Haley Robinson, Lake City, and Jack W. Shaw, Jr., Orlando, for Appellant.
Dawn Giebler-Millner of Greenberg Traurig, P.A., Orlando, Elliott H. Scherker and Julissa Rodriguez of Greenberg Traurig, P.A., Miami, for Appellee.
PER CURIAM.
Candler Holdings Limited I (Candler Holdings) appeals a final summary judgment granted to Watch Omega Holdings, L.P. (Watch Omega) on Watch Omega's claim of adverse possession with respect to a parcel of real property in Leon County which vested title to that property in Watch Omega. We reverse because the record evidence does not meet the requirements of section 95.18, Florida Statutes (2003),[1]governing adverse possession without color of title.
1233*1233 In 1988, Candler Holdings owned the Lafayette Place Shopping Center in Leon County. As part of that development, a retention pond was created for storm water drainage. In connection with a loan to Candler Holdings from General Electric Capital Corporation (GE), Candler Holdings granted GE a mortgage on the shopping center property and several other unrelated parcels. The parcel of land on which the retention pond was located, however, was not included within the legal description of the mortgaged property. When that mortgage was foreclosed, GE assigned its interest to Watch Omega's predecessor in title, CJU, Ltd. (CJU). In 1998, CJU transferred that interest to Watch Omega. In 2003, when title work was being performed on Watch Omega's property, the parties first learned that the record title to the parcel of land on which the retention pond is located remained in the name of Candler Holdings. Until that time, the parties were under the mistaken impression that the legal description of the retention pond parcel had been included in the mortgaged property.
Upon learning that it had legal title to the retention pond, Candler Holdings asserted an interest in the property. Watch Omega responded by filing a two-count complaint for adverse possession and reformation of mortgage and deed.[2] The complaint sets forth a legal description for the retention pond parcel.[3] Watch Omega alleges that on its ad valorem tax returns the legal description of the retention pond was included within the legal description of the Lafayette Place Shopping Center. Those returns, however, were neither appended to the complaint nor introduced into evidence below; and are not contained in this record.
In support of its motion for summary judgment, Watch Omega filed the affidavits of representatives of CJU and Watch Omega. Both assert that a review of Leon County's tax rolls indicate that the retention pond was treated as part of the Lafayette Place Shopping Center. No public records are appended to either affidavit and no public records were introduced into evidence below by Watch Omega. In his affidavit in opposition to the motion for summary judgment, the principal of Candler Holdings, Asa G. Candler, disputes Watch Omega's contention, stating that the Lafayette Place Shopping Center and the retention pond are two separate parcels for tax purposes. In his earlier deposition, Candler had testified that his son had talked to someone in the Leon County Tax Assessor's Office and was told that, because the parcel containing the retention pond was so small, no tax bill had been sent regarding that parcel. Candler Holdings did not introduce any public records in support of Candler's statements.
At the summary judgment hearing, Candler argued that, to obtain relief pursuant to section 95.18, it was Watch Omega's affirmative duty to prove it had filed "a return of the property by proper legal description to the property appraiser of [Leon County] within one year after entering into possession and . . . subsequently 1234*1234 paid all taxes . . . levied against the property . . ." as required by section 95.18(1). Even though the record does not contain evidence of such a return,[4] or the form DR-452, Florida Administrative Code Rule 12D-16.002, mentioned in Manin v. Milander, 452 So.2d 997 (Fla. 3d DCA 1984), the trial court entered final summary judgment in favor of Watch Omega, relying upon Candler's deposition testimony that he had not paid taxes on the property containing the retention pond and rejecting his affidavit on the grounds that it constituted hearsay.
As stated in Meyer v. Law, 287 So.2d 37, 40-41 (Fla.1973):
In Florida, there are only two ways to acquire land by adverse possession. First, without color of title, the claimant must show seven years of open, continuous, actual possession, hostile to all who would challenge such possession, must both pay all taxes for the seven year period, returning said land for taxes during the first year of occupation, and enclose or cultivate said lands for the seven year period. Second, with color of title, the claimant must show he entered into possession of the premises under a claim based upon a written instrument of conveyance of the premises in question, or deed, or judgment of a competent court, and there has been a continued occupation and possession of the premises . . .
* * *
Public policy and stability of our society, . . ., requires strict compliance with the appropriate statutes by those seeking ownership throughadverse possession.
Under either section 95.16[5] or section 95.18, Florida Statutes (2003) "the possession of the real property by the one asserting the right must be continuous, adverse, and exclusive of any other right." Mullins v. Colbert, 898 So.2d 1149, 1151 (Fla. 5th DCA 2005). As we explained in Turner v. Wheeler, 498 So.2d 1039, 1042 (Fla. 1st DCA 1986):
Adverse possession is not favored and all doubts are resolved in favor of the owner. It is essential to a finding of adverse possession that the possessor's use not be permissive. Actual use is presumed permissive and the user has the burden to demonstrate that his use was without permission. Permissive use can become adverse, but only upon clear, positive and distinct notification of the owner by the permissive user that he is claiming the property other than by permission.
(Citations omitted). "Each essential element of an adverse possession claim must be proven by clear and convincing evidence." Bailey v. Hagler, 575 So.2d 679, 681 (Fla. 1st DCA 1991). (Citations omitted). "The claim cannot be `established by loose, uncertain testimony which necessitates resort to mere conjecture.'" Grant v. Strickland, 385 So.2d 1123, 1125 (Fla. 1st DCA 1980)(quoting Downing v. Bird, 100 So.2d 57, 64 (Fla.1958)). In addition, "[t]o establish adverse possession without color of title, the claimant must show . . . payment of all taxes by proper legal description for the statutory period." McLemore 1235*1235 v. McLemore, 675 So.2d 202, 206 (Fla. 1st DCA 1996).
The requirements of the statute and the case law were not met in this case. As the movant for summary judgment, Watch Omega bore a heavy burden, see Cox v. CSX Intermodal, Inc., 732 So.2d 1092, 1095 (Fla. 1st DCA 1999), and was required to prove "a negative . . . the nonexistence of a genuine issue of material fact," Holl v. Talcott, 191 So.2d 40, 43 (Fla.1966), before "it becomes necessary to determine the legal sufficiency of the affidavits or other evidence submitted by the party moved against." Id. Watch Omega's reliance solely on the bare affidavits of representatives of it and CJU was clearly insufficient to meet its heavy burden. The affiants' review of the public records and assertion that the appropriate taxes had been paid on the disputed property, by itself, was insufficient to establish adverse possession here.Zoda v. Hedden, 596 So.2d 1225, 1226 (Fla. 2d DCA 1992)(unauthenticated documents referred to in the affidavit of appellee's counsel, Walter E. Smith, which were not attached to his affidavit, constituted incompetent hearsay not sufficient to support summary judgment). "[A] corporate officer's affidavit which merely states conclusions or opinion [is insufficient] even if it is based on personal knowledge."Alvarez v. Florida Ins. Guar. Ass'n, 661 So.2d 1230, 1232 n. 2 (Fla. 3d DCA 1995)(citing Nour v. All State Pipe Supply Co., 487 So.2d 1204, 1205 (Fla. 1st DCA 1986)).
REVERSED and REMANDED for further proceedings consistent with this opinion.
BARFIELD, VAN NORTWICK, and THOMAS, JJ., concur.
[1] Section 95.18, which has remained substantively the same throughout the period of the parties' transactions, with one very minor technical change, see chapter 95-147, § 523, at 394, Laws of Florida, provides:
(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.
[2] The count seeking reformation is not before us.
[3] We note that the legal description in the complaint is not identical to the legal description contained within the final summary judgment.
[4] See Forman v. Ward, 219 So.2d 68, 69 (Fla. 1st DCA 1969)(suggesting that compliance with this requirement of section 95.18 may be achieved by delivering a return based upon a legal description "having reference to a book and page number in the records of the circuit court clerk where a recorded deed may be found.").
[5] Section 95.16, Florida Statutes (2003), addressing adverse possession under color of title, has not been invoked in this case.
