Last Update: 02/10/16
All across Florida, there has been an increase in the use of Florida’s adverse possession laws to claim legal title to homes that have been left empty and abandoned in the ongoing Florida foreclosure fraud crisis. Under Florida Statutes 95.16 – 95.18, there is a way for strangers to enter a home and obtain clear, legal title of the property – but it’s a cagey use of longstanding law, and now the Florida Attorney General is getting involved.
Florida’s Adverse Possession Laws – What Are They?
Adverse possession is a time-honored legal concept recognized throughout the United States for over a century. The idea of recognizing the right of someone who had “adversely possessed” land arose out of a need to keep up communities and farmland — if the owner abandoned the place, for whatever reason, then it was deemed a better thing ( i.e., in the public interest) for someone else to step in there and farm the land rather than to let the acreage grow over and return to nature.
After a certain number of years — an agreed upon time period that gave the original owner more than enough time to return and claim ownership — the person who had taken over the place could have clear title to it under the law. It has long been called the “law of adverse possession” and it exists in almost every state in the United States.
In Florida, the adverse possession statutes are on the books as Florida Statutes 95.16 – 95.18.
For real estate in the State of Florida, the Florida Legislature has decided that seven (7) years is the time period allowed for adverse possession of real property here. However, the law is clear on what is required – and key here is the need to start that clock officially ticking:
For the purpose of this section, property is deemed possessed in any of the following cases:
(a) When it has been usually cultivated or improved.
(b) When it has been protected by a substantial enclosure. All land protected by the enclosure must be included within the description of the property in the written instrument, judgment, or decree. If only a portion of the land protected by the enclosure is included within the description of the property in the written instrument, judgment, or decree, only that portion is deemed possessed.
(c) When, although not enclosed, it has been used for the supply of fuel or fencing timber for husbandry or for the ordinary use of the occupant.
(d) When a known lot or single farm has been partly improved, the part that has not been cleared or enclosed according to the usual custom of the county is to be considered as occupied for the same length of time as the part improved or cultivated.
When the occupant, or those under whom the occupant claims, entered into possession of real property under a claim of title exclusive of any other right, founding the claim on a written instrument as being a conveyance of the property, or on a decree or judgment, and has for 7 years been in continued possession of the property included in the instrument, decree, or judgment, the property is held adversely.
If the property is divided into lots, the possession of one lot shall not be deemed a possession of any other lot of the same tract. Adverse possession commencing after December 31, 1945, shall not be deemed adverse possession under color of title until the instrument upon which the claim of title is founded is recorded in the office of the clerk of the circuit court of the county where the property is located.
Florida Adverse Possession Claims Skyrocket as Opportunities to Adversely Possess Abandoned Foreclosed Homes Arise
Drive throughout Florida, particularly South Florida, and you will see empty homes. It’s a part of the Foreclosure Fraud crisis. Some people have seen those houses as opportunities to profit, however, through the use of the longstanding adverse possession laws.
For example, in April 2011, it was reported that Polk County had 800+ adverse possessions registered with the property appraiser there. Over 800 properties in that county had filings down in the county real property records of adverse possession notices, so the time clock could start running under Florida Statute 95.16.
What’s happening is companies are springing up, either charging a fee to explain how to adversely possess a home or filing adverse notices on lots of homes themselves, and then filling those homes with tenants in order to meet the occupying requirement of the adverse possession laws. Do the tenants know what’s up? Doubtful. Do the companies care that they seem to be bottom-feeders, taking advantage of the system? Nope.
This month, the Florida Attorney General appears to be taking steps to stop this sort of thing. In Tampa, the Attorney General’s office is pursuing criminal charges against two companies that are involved in adverse possession campaigns: (1) Chris McDonald, owner of Chateau-Lan Property Solutions, has been charged with organized scheme to defraud and (2) Demetrius Lewis, was also arrested on a charge of organized scheme to defraud, however, his company (Help is Here Foreclosure Prevention and Credit Repair) did not attempt to adversely possess the land itself; instead, Lewis’ scam was to find abandoned houses and then charge people $1000/each on how they could adversely possess the house themselves.
Getting a Florida Real Estate Lawyer to Help You with Your Abandoned Florida Foreclosure
It’s expensive in both time and money for the land owner to fight a court action against the adverse possessor, but it can be done. Just this week, Tampa Bay Online reported the success story of a woman who won her legal fight against recently arrested Chris McDonald’s Chateau Lan company.
The best thing is not to leave your house vacant – this is part of a successful foreclosure defense strategy. Adverse possession is a risk you take with you when you walk away from your home. Others are liability under the law for any injuries sustained on the property, etc. – you might even be legally liable to the adverse possessor for personal injuries at the property (they might sue you for it, even if they ultimately lose the case).
A good piece of advice is to at least speak with an experienced Florida real estate lawyer to learn about your rights. Most real estate lawyers, like Larry Tolchinsky, offer a free initial consultation (over the phone or in person, whichever you prefer) to answer your questions.
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