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. The adverse possessor 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.
In Boca Raton, Florida, Andre de Paula Barbosa (“Barbosa”) is attempting adverse possession of a $2.5 million mansion. The adverse possession paperwork was filed by him in July 2012, the same month that Bank of America became the owner through foreclosure. Local news sources indicate that neighbors called police to the home in December, but Barbosa was not removed because he presented the proper paperwork and no one saw him break-in.
The applicable Florida statute provides that in order to remove the adverse possession claim from the property: (a) The person claiming adverse possession notifies the property appraiser in writing that the adverse possession claim is withdrawn; (b) The owner of record provides a certified copy of a court order, entered after the date the return was submitted to the property appraiser, establishing title in the owner of record; (c) The property appraiser receives a certified copy of a recorded deed, filed after the date of the submission of the return, from the person claiming adverse possession to the owner of record transferring title of property along with a legal description describing the same property subject to the adverse possession claim; or (d) The owner of record or the tax collector provides to the property appraiser a receipt demonstrating that the owner of record has paid the annual tax assessment for the property subject to the adverse possession claim during the period that the person is claiming adverse possession. Fla. Stat. § 95.18(7).
In this particular case, Bank of America has filed suit against Barbosa in the Circuit Court of the 15th Judicial Circuit of Palm Beach County, Florida in the form of an ejectment action. The suit was filed January 23, 2013, and the case is currently pending before the Honorable John Kastrenakes.
South Florida has seen an increase in adverse possession claims in recent years as a result of the many foreclosures in the area. Some people are trying to take advantage of empty homes by filing claims for adverse possession. Those filing adverse possession claims take a risk when they trespass, break-in, or collect rents at properties they do not own.
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.