South Florida Real Estate Litigation – Adverse Possession

Posted on: June 15, 2012

Adverse possession is a legal doctrine under which a person may gain ownership rights in a parcel of real property by occupying that parcel for a set period of time. It operates as an inverse of the statute of limitations that applies to an action in ejectment, a civil action that allows a landowner to remove an unwanted occupier of their land. The doctrine exists to cure possible defects in title that may arise by putting a limitation on possible litigation over ownership and possession. Without adverse possession, a landowner’s title may be challenged by and long-lost heirs of any owner, possessor, or lien holder with a legal claim to the property.  Furthermore, the doctrine also encourages the use and maintenance of real property by penalizing landowners who are not actively engaged in the upkeep of their property.

Under Florida law, adverse possession occurs when land has been possessed by the individual claiming an interest in the land for at least seven years. Furthermore, the adverse possessor must possess the land in an open, notorious, and visible manner in a way that it conflicts with the owner’s right to the property. As a result of these requirements, it follows that adverse possession cannot occur if the individual claiming adverse possession has permission to occupy the property. Additionally, the possession must be continuous for the seven year period for a claim of adverse possession to prevail.  Florida law allows for two types in two ways: (1) adverse possession under color of title or (2) adverse possession without color of title.

Adverse Possession under Color of Title

In addition to the basic requirements listed above, an adverse possessor can claim property under color of title if the following conditions are met: The adverse possessor must show that the claim of title to the land is based on a recorded written document. The document may be faulty, but the adverse possessor must genuinely believe this document to be the correct claim of title. The adverse possessor must show possession by one of the following

·         Cultivating the land or making improvements

·         Creating an enclosure

·         If not enclosed, using the land for a supply of food or fencing timber for husbandry or the ordinary use of the occupant

·         Partly improving a portion of a recognized lot or single farm, making the unimproved part, if in the custom of the area, considered occupied

Adverse Possession without Color of Title

Adverse possession without color of title occurs when the adverse possessor does not have a legal document establishing title to the property. Regardless of the lack of such document, an adverse possessor may nevertheless establish title by filing a return with the county appraisers within one year of entry onto the property, and paying all taxes and liens assessed during possession of the property. In addition to paying taxes, the individual must either cultivate or improve the land, or protect it with a substantial enclosure.

If you currently have a claim for adverse possession or are concerned that someone may have a claim against your property, call one of our South Florida real estate litigation attorneys today at (954)-779-7009.