Alleged Adverse Possessor Charging Rent Gets Arrested

In West Palm Beach, Nathalie Heil was arrested on February 1, 2013, and faces charges of grand theft and fraud. Various news sources indicate that Heil has been accused of renting her neighbor’s foreclosed home. Heil claims she owns the property through adverse possession. To claim adverse possession, a claimant must file a DR-452 form with a proper legal description to the property appraiser of the county where the property is located within one year of entering into possession.

While infamous Boca Raton squatter, Andre de Paula Barbosa, was not arrested when police showed up to the property he is claiming through adverse possession, Barbosa was able to produce the paperwork he had filed with the county property appraiser.  Unlike Barbosa, the police found no paperwork filed with the county property appraiser claiming adverse possession.  The county property appraiser lists Juan Cedeno as the owner of record since 2007.

According to news sources, Cedeno’s property manager had not checked on the home in eight months because it is in foreclosure, but recently stopped by and noticed the property looked as though it was being lived-in.  Two women had been living in the home since mid-June when they found an ad on Craigslist. The women were paying $1,500 a month in rent to Heil. Heil maintains that she is legally subletting her house.

Adverse possession is a means of attempting to gain legal title to property by continuous possession of the property for at least seven consecutive years in an open, notorious, and visible manner such that it conflicts with the owner’s right to the property. Fla. Stat. § 95.18.  The adverse possessor must pay all taxes for the seven year period and enclose, cultivate, or improve the property.

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.