Thursday, March 14, 2013

Think Adverse Possession is Tough in Florida Now? Take a Look at These Bills!

In honor of my most popular blog post ever, I'm bringing my readers this update on adverse possession legislation. First, what's adverse possession?
The doctrine of adverse possession “dates back at least to sixteenth century England and has been an element of American law since the country's founding.”2 The first adverse possession statute appeared in the United States in North Carolina in 1715.3 Adverse possession is defined as "[a] method of acquisition of title to real property by possession for a statutory period under certain conditions." An adverse possessor must generally establish five elements in relationship to possession. The possession must be:
  • Open; 
  • Continuous for the statutory period; 
  • For the entirety of the area; 
  • Adverse to the record owner's interests; and 
  • Notorious.
In most jurisdictions, state statutory law prescribes the limitations period – the period within which the record owner must act to preserve his or her interests in the property – while the state's body of common law governs the nature of use and possession necessary to trigger the running of the statutory time period. As legal scholars have noted, “[a]dverse possession decisions are inherently fact specific.” Therefore, an adverse possessor must establish “multiple elements whose tests are elastic and provide the trier of fact with flexibility and discretion.”
That most popular post ever was "Adverse Possession Now More Difficult in Florida." It's been more than twice as popular as any other post I've written. It's also my first post from when I really got starting blogging in earnest. In that post, I explained how adverse possession worked in Florida and how Senate Bill 1142 (2011) changed it:
In Florida, this ancient English doctrine of property law is defined in chapter 95, Florida Statutes. Under Florida law, there are two ways to adversely possess property. First, a person can adversely possess by actually possessing it and claiming color of title, or claiming a right to it based on a recorded document, for seven years. Second, a person can actually possess a property and, within the first year of possession, file a claim with the county property appraiser's office. Under this method, the person also has to pay property taxes during the seven year possession period. 
SB 1142 amends the current law to make it harder to acquire property by adverse possession by paying taxes on a parcel. Currently, there is no requirement that a property owner be notified that someone has stepped in to pay taxes on the property. It requires property appraiser to notify the rightful property owner when someone files for adverse possession with the appraiser. When filing, the possessor must disclose the intended use of the property.
That bill passed, but the Legislature doesn't seem to be completely satisfied that property owners are protected enough. House Bill 903 and its counterpart, Senate Bill 1166, are winding through the legislative process. If passed, they would make it nearly impossible to claim adverse possession in Florida without color of title (i.e., by what is commonly called squatting). The staff analysis reports:
This bill adds a number of requirements related to adverse possession without color of title. The bill requires that a person who files a return for taxes with the intent of claiming the property by adverse possession must:
  • Wait for all taxes and liens on the property to accrue for two years.
  • Have actual and continued control of the property.
  • Maintain or improve the exterior of any structures on the land.
  • Pay all mortgages and liens on the property.
  • Not apply for adverse possession for more than one property in the state at the same time.
  • Not enter any structure on the land until the end of the adverse possession period and after a deed has been issued to the possessor.
  • Maintain the property without entering any of the structures.
  • Provide a notarized statement from the record owner giving consent to the adverse possession.
It's tough to imagine a situation where someone could meet these requirements. And, as the staff report hints, the bill seems more intended at eliminating adverse possession than fixing it: "The bill .. requires a signed statement of the existing owner acknowledging the adverse possession, but the concept of adverse possession is that possession is adverse to the owner. If the owner acquiesces to possession, there can be no claim for adverse possession."

Maybe cases like this attempt to adversely possess a $2.5M mansion here in Florida (along with the banks that own those properties) are the impetus behind these bills. But adverse possession was designed to preserve the status quo and keep property productive. These bills seem to destroy that delicate balance.