Adverse possession is a legal concept that allows someone who is not the legal owner of a piece of land to eventually gain ownership rights to that land through continuous, open, and exclusive possession of it for a specific period of time.
For actual landowners, the idea that someone else could eventually gain ownership of their land simply by occupying it can be unsettling and even unfair.
This article will discuss the element necessary to gain title to someone else’s land in Florida by adverse possession and, more importantly, how to prevent this from happening to your land.
Adverse Possession Law in Florida
There are two methods to establish title by adverse possession in Florida:
1. With Color of Title – Fla.Stat. § 95.16;
2. Without Color of Title – Fla. Stat. § 95.18.
“Color of title“ refers to a legal term that describes a situation where a person possesses a property based on a deed or other written instrument, such as a contract or survey, that appears to give them valid ownership rights, even though there might be a defect in the title.
One who claims adverse possession under “color of title” must base the claim on a written instrument that purports to convey the property. Mitchell v. Moore, 152 Fla. 843, 13 So.2d 314 (Fla. 1943). The written instrument constituting “color of title” need not be valid or operative but must contain a legal description of the property. Simpson v. Lindgren, 133 So.2d 439 (Fla. 3d DCA 1961).
“Without color of title“ refers to a situation in which a person possesses a property without having a valid or legitimate claim of ownership based on any written document or legal instrument. In other words, they do not have a deed, contract, or any other form of documentation that could reasonably support their right to own or occupy the property.
Adverse Possession with Color of Title (§ 95.16) In Florida
Under Florida Statute § 95.16, a person seeking adverse possession with color of title must demonstrate the following:
1. Continuous Possession: There must be continuous “possession” of the land for seven years. This possession must be exclusive, meaning they act like the only owner.
2. Legal Description: The legal description of the property must be clearly defined in a written instrument, such as a conveyance, decree, or judgment.
3. Recording of the Legal Description: The written instrument (conveyance, decree, or judgment) must be recorded in the office of the clerk of the county’s circuit court where the property is located.
The statute sets forth conditions under which property is deemed to be in the “possession” of the person claiming adverse possession:
- When the property is usually cultivated or improved.
- When the property is enclosed by a substantial fence or boundary.
- If the property is not enclosed but is used for things like getting firewood or wood for fences, farming, or the owner’s regular needs.
- If part of a known piece of land has been improved or used, the unused portion is considered owned for the same time as the improved part.
Adverse Possession Without Color of Title (§ 95.18) In Florida
Under Florida Statute § 95.18, a person seeking adverse possession with color of title must demonstrate the following:
1. Qualifying Conditions for Adverse Possession
To establish adverse possession without color of title, the possessor must meet specific criteria, including:
- Continuous possession of the property for at least seven years.
- Possession under a claim of title exclusive of other rights.
- Pay all outstanding taxes and matured installments of special improvement liens within a year of entering possession.
- Submit a return of the property’s legal description to the county’s property appraiser within 30 days of tax payment.
- Continue paying taxes and installments for the remaining years required for adverse possession.
2. Property Possession Indicators
Actual “possession” of the property can be established through:
- The substantial enclosure of the property for protection.
- Cultivation, maintenance, or improvement of the property.
How To Prove Adverse Possession In Florida
In the case of “Seton v. Swann, 650 So. 2d 35 (Fla. 1995),” the Florida Supreme Court established that for a party to obtain title through adverse possession by color of title under section 95.16, two conditions must be satisfied:
Firstly, the property must be identified in a written document that is officially recorded in the county records.
Secondly, there must be continuous possession of the property for a period of seven years.
Strategies to Safeguard Your Property Against Adverse Possession
Avoiding adverse possession of your property involves taking proactive measures to protect your ownership rights and prevent others from acquiring legal ownership through continuous and open use.
Here are some strategies to consider:
- Regular Property Inspections: Regularly inspect your property to ensure no one uses it without your permission. This will help you identify any potential adverse possession claims early on.
- Clear Boundaries: Mark the boundaries of your property with fences, walls, or other visible markers. This can help prevent encroachments and clarify where your property lines lie.
- Communication: If you become aware of someone using your property, communicate with them in writing to assert your ownership rights and ask them to stop. This establishes a record of your efforts to prevent adverse possession.
- Property Tax Payments: Continuously pay property taxes on time. Failure to pay property taxes can weaken your claim to the property and make it easier for someone else to claim adverse possession.
- No Permission: Do not grant permission for others to use your property in a way that might be construed as allowing them to gain ownership. Any permissive use can weaken your defense against an adverse possession claim.
- Document Everything: Keep records of property surveys, deeds, property tax payments, and any communication with individuals using your property without permission. These records can be crucial evidence if a dispute arises.
- Lease Agreements: If you allow someone to use your property temporarily, create a written lease agreement that explicitly states their lack of ownership rights and specifies the duration of use.
- Regular Use: Continue using your property regularly. Regular, consistent use helps demonstrate your active ownership and can undermine any adverse possession claims.
- Legal Action: If you become aware of a potential adverse possession claim, consult a real estate attorney to discuss your options. Taking legal action early on can help protect your ownership rights.
- Post Warning Signs: If applicable, post signs indicating your property ownership. While not foolproof, this can discourage individuals from attempting adverse possession.
- Negotiation: If you discover someone is using your property without permission, consider negotiating an agreement that reaffirms your ownership while allowing them to use the property under certain conditions.
- Land Use Agreements: If you know someone using your property, you can create a land use agreement outlining their use while reaffirming your ownership. This agreement can help prevent adverse possession claims.
Conclusion
I strongly recommend seeking legal advice from an experienced real estate attorney in Florida if you have any concerns related to adverse possession. An attorney’s expertise will clarify local laws, the feasibility of your claim, and the potential risks involved.