Adverse Posession. Florida's Squatter Rights cause Proliferation in Court Cases

[stephendare]

Tomorrow MetroJacksonville will be discussing the foreclosure crisis on WOKV in the morning.

They are covering the case of Marcellus Dunbar, the 'squatter' who was recently arrested in Clay County after filing an Adverse Posession claim on an abandoned 500,00 dollar home in forclosure.

It turns out that this is a larger issue in the state of florida, and as usual the local media totally missed the larger point.

Check out this blog post from a couple of months ago.

http://bobhurt.blogspot.com/2011/05/florida-adverse-possession-strategy.html

Bob Hurt
Thursday, May 05, 2011
Florida Adverse Possession Strategy
How to Adversely Possess Abandoned Realty and Stay Out of Jail
Creative Commons Copyright 2011 by Bob Hurt. 

This document discusses a strategy for alleviating America’s and Florida’s homeless problem through adverse possession free of undue interference from law enforcers.

Adverse possession (AP), revealed in Florida statutes chapter 95, specifically 95.16 and 95.18) has become a hot topic in Florida.  The sheriffs seem unable to see AP as a civil right.  Those in some counties arrest adverse possessors (APers) for related crimes like grand theft, burglary, criminal mischief, breaking and entering, and trespass.  Most people who take AP  of a house cannot afford the legal problems stemming from such an arrest.

Foreclosure defense lawyer Randy Reder of Tampa seems to loathe adverse possession.  He has better knowledge of law that I do.  He recently wrote me:

A person claiming an interest by virtue of adverse possession has to adversely possess (basically trespass) for seven years and pay the taxes.   So for those seven years the party in possession is a trespasser, a criminal who could be arrested.    Even if an owner to property abandons it, that does not give anyone any rights to it.   After the seven years, the person claiming adverse possession does not automatically get it.  He or she then has to file a complaint with the court and obtain a court’s judgment.

A claim for adverse possession can easily be defeated by the owner making it known that it is alright with him that they are in possession.  Such acquiescence removes the element of possession being adverse.

I wrote back:

Thanks, Randy.  Makes sense that an owner has right to property, but if the law gives a year to file notice of AP and a 7 year window of opportunity to get ownership, doesn't that mean the Legislature gives the APer a pass on trespass, in other words, makes it a civil and not a criminal matter?

Also, does the APer HAVE to provide the tax money, or do the taxes merely have to get paid?  Obviously after a year of nonpayment if the tax collector files a tax lien and auctions a certificate, the cert holder can force a sale to get paid in the 3rd year.  So what difference does it make WHO pays the tax so long as it gets paid?

Do you know of any case law on any of these or the below points?
He responded:
No, it’s still criminal.   Yes the APer has to pay the taxes.   If someone else pays the taxes and gets a tax deed, they become the owner and are entitled to enforce a writ of possession five days after the tax deed sale.  Yes there is case law on this, but it would be time consuming for me to research it and spell it all out.


Clearly, I shall have to research this matter, or use somebody else’s research.  You see, I refuse to believe AP has any criminal element.  The government cannot lawfully make a civil right into a crime.  Nor can the government lawfully block every practical avenue for exercising a civil right by making it into a crime or by some other device or artifice.

Government operatives must see existing laws as harmonious with one another.  Thus, for example, a person who moves into someone’s abandoned house thereby trespasses.  However, a person who takes adverse possession of the same house in accordance with law thereby exercises a right inherited from English law.  For the trespass, the sheriff may remove the trespasser.  For AP, the sheriff may not remove the trespasser unless a court issues the owner a writ of possession.  And, expectably, the court will issue that writ if petitioned by the owner.

Likewise, one commits grand theft by depriving an owner of the exercise of possessory dominion over the owner’s realty; the sheriff may remove the interloper in shackles.  However one commits no crime by taking adverse possession of realty which the owner abandoned; the sheriff on his own initiative must leave the APer alone, even if requested by the owner to eject the adverse possessor.  The owner may remove the APer only through the sheriff acting under authority of a writ of possession issued by a court.  And in this latter case, the APer has the right to receive notice of the action and to speak in his own interest on the matter to the judge in court. So goes my theory.

Now the following seems axiomatic:

“No Person can sell a thing he does not own, unless as the duly authorized agent of the owner. Nemo Dat Quod Non Habet.”
Barnard v. Norwich & W.R. Co., 2F. Cas. 841, 845 (Cir. Ct. D. Mass. 1876).

However, if an owner abandoned the realty, that owner has effectively said “I don’t want it any more and I’ll have nothing to do with it.”  In such a case the doctrine of “finders keepers” should apply.  Thus, one who takes AP of that abandoned realty should have the right to claim not only possessory dominion, but also out-and-out de facto ownership of the realty.  And so the doctrine of “losers weepers” should apply.

In such a case, the rightful owner effectively says “I authorize anyone who wishes to take possession and dispose of this realty as that possessor desires.”  Abandonment constitutes such a bequeathal. And the APer should have the right to get a court to confirm it by awarding a deed to the APer.   So goes my theory.

Now, the AP statutes impose a time limitation, requiring the APer to file notice within a year and possess the realty notoriously (blatantly and without hiding the fact) and with hostility (not having permission of the owner), improve it, make boundaries obvious, and pay taxes and other government fees for 7 years.  This ordeal terminates the owner’s right to  remove the APer, who must then file a Quiet Title lawsuit to obtain title.  Look at the laws for yourself:


95.16 Real property actions; adverse possession under color of title.—
(1) 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.
(2) 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.

95.18 Real property actions; adverse possession without color of title.—
(1) When the occupant or those under whom the occupant claims have been in actual continued occupation of real property for 7 years under a claim of title exclusive of any other right, but not founded on a written instrument, judgment, or decree, the property actually occupied shall be held adversely if the person claiming adverse possession made a return of the property by proper legal description to the property appraiser of the county where it is located within 1 year after entering into possession and has subsequently paid all taxes and matured installments of special improvement liens levied against the property by the state, county, and municipality.
(2) For the purpose of this section, property shall be deemed to be possessed in the following cases only:
(a) When it has been protected by substantial enclosure.
(b) When it has been usually cultivated or improved.

The question now arises as to whether the APer can short-cut the 7 year limitation somehow.  After all, why should the APer have to endure a 7-year nerve-wracking ordeal if the owner abandoned the property and essentially gave it away to whomever would adversely possess it?

I see no reason not to ask a court to award the deed prematurely, before expiration of the 7 year limitation.

I can think of only one other method that does not require cooperation of the owner:  tax deed.  The APer could seek abandoned realty on which the owner owes unpaid tax.  This will become difficult because most abandoned realty sits in some phase of foreclosure.  In that case, the foreclosure plaintiff pays the tax from his own pocket or from an escrow account established on the owner’s behalf and not yet depleted.  However, finding such realty, the APer should take AP and buy the tax lien certificate, rather than pay the tax outright.

This makes sense strategically because the buyer of the tax lien certificate can force a tax deed sale in the third year of ownership of the certificate.  At that auction, the buyer of the tax lien certificate might have the opportunity to become the sole bidder and then purchase the property for the tax owed plus the interest.

Some law enforcers foolishly think an APer must do comply with all the AP law requirements for 7 years before taking possession. One complained that the APer had not complied with the law because of not having yet filed a notice of AP 2 months into the AP.

Law enforcers and reporters seem to hate AP for no apparent reason. Reporters almost never write even vaguely positive stories about AP.  And, as one APer remarked to me today:

“I think the deputies feel economic jealousy.  They see low-income families moving into nice houses in nice neighborhoods, nicer than the deputies can afford, and pay only $600 a month.  It makes the deputies angry.  The think to themselves ‘Oh HELL no.  This is NOT going to happen. Not on MY watch.  Not in MY town.” And so they try to ruin the APer’s life.”

I personally think it makes best sense for an APer to find a way to get the cooperation of the owner in doing a strategic AP of the realty.  The owner could issue a quitclaim or warranty deed to the APer, then the APer could rent it out to the owner or another party at a low price, and then they could work alone or together to fight the foreclosure.  Why?  Because:

1.       Virtually every single-family residential real estate purchase has appraisal fraud at its base,
2.      Virtually every institutional mortgage loan transaction has predatory lending and other fraud at every level, including fraudulent or illegal transfers/assignments and robosigning,
3.      Every securitization of mortgage loans has fraud, theft, and conversion in it, 
4.      Every foreclosure plaintiff’s action contains one or more frauds on the court.

Realistically, a properly trained and motivated foreclosure defense warrior can become a dangerous marauder of the plaintiff’s financial empire and win treble compensatory damages and enormous punitive awards for exposing predatory lending and securitization fraud.  At the very least they can derail the foreclosure sale of the AP realty.  And if they play their cards right, their efforts can result in prosecutions of plaintiffs and their counsel for their frauds and criminal malfeasance.

Even without proper training, an APer/owner can hire experts in finding and analyzing the fraud in appraisals, mortgage loans, foreclosures, securitization, and taxation. Such experts and remorseless litigation can bring big rewards, enough to make AP s highly successful enterprise.

Most abandoneers (owners of record who abandoned their realty) want absolutely nothing to do with the realty and intend never to return to it or have anything to do with it.  Most have stopped all money flows toward maintenance, mortgage payments, insurance payments, homeowner dues, and taxes.

For the above reasons, abandoneers might gladly execute a quitclaim deed to the APer  in exchange for $100 or an agreement to share some of the proceeds of a litigation win.  In general, it makes sense to have the owner’s good will and cooperation as a witness.  For example, an APer should strive to obtain copies of all the owner’s realty purchase, loan, and foreclosure-related documents, and all maintenance records on the realty.  Thus, an APer should strive to build a good relationship if any with the owner.

On the other hand, I consider it dangerous to the AP / foreclosure defense enterprise to give the owner too much information until after the APer has obtained a deed or agreement of revenue sharing from the proceeds of the foreclosure defense and fraud litigation.

APers of foreclosure-abandoned realty often enjoy the boon of a cash-for-keys offer from the foreclosure plaintiff.  The plaintiff wants the occupant to leave the realty without a squabble or fight within some short period of time, like 30 days.  The plaintiff offers $2,000 to $5,000 for such a quich, hassle-free exit, leaving the house “broom clean.”

An APer who rents the property to another party can agree in advance to split such a fee and move quickly to another location.

An APer should always treat the realty with pride and respect, and encourage anyone renting it to do so.  Ideally, the APer who rents the realty out should personally inspect it monthly, collect rents without fail or evict the tenant, and personally ensure the good grooming and care of the grounds and structures, including painting, lawn care, garden care, repairing damage or wear and tear.  The APer should not become a reckless opportunist, but rather do good for the realty and the community, making friends with residents and assisting neighbors.

The APer who rents to others should have two men and a truck available at all times to move a tenant from one house to another in the event the owner seeks an eviction.  The APer should never force the owner to go through a full eviction process, but merely inform the APer of the intention, whereupon the APer should move the occupant to another AP realty.

Finally, realize that while AP provides benefits for EVERYONE affected by or involved in it, YOU will pay the cost of it, including the cost of dealing with whatever goes wrong, like neighbors complaining to the police about you or resenting you for living in a nice house while poor (or some other prejudice), or the police might stir up trouble with the abandoneer.

[stephendare]

http://bobhurt.blogspot.com/2011/05/florida-adverse-possession-strategy.html

Outline of Strategy to do AP without Trouble with Sheriffs.

1.      Don’t Move In.   If you move in before making proper legal preparations, the sheriff might arrest you.
2.     Investigate.  Discover all you can about the realty, taxes, foreclosure pending, liens and assessments, physical characteristics (see county tax records and property appraisal records, including plat map and overhead view on line),  whereabouts of the owner (such as by sending a letter and demanding address correction), reason the owner left, nature of the owner (talk to neighbors, look for police record in the county).
3.     Analyze.  Calculate the costs of the AP and managing and defending the realty.  Determine whether you want to tale AP of and maintain the realty, based on your needs and goals, resources, potential trouble, costs.  Show these on a balance sheet along with your available resources.
4.     Decide.  Realize that you can turn back, but any adventure like AP can cost you jail time, bond / bail money, public scorn, official oppression, and so on.  Do you want to pay the price?  Can you handle any emergencies you or others create over the phases of AP and foreclosure defense?  If yes, DO IT.
5.      Inform.  The state requires that an APer file a DR452 form with the County Property Appraiser.  This informs the county.  You also might consider informing the sheriff and the rightful owner.  If you inform the rightful owner in the correct way, the owner might simply ignore your living in the property because of the knowledge that you will care for it, improve it, and pay the taxes.
6.      Prepare to Lien.  If you inform the owner prior to move-in, let the owner know that you require payment in US minted silver coins at a reasonable labor rate for your work and out of pocket expenses to maintain and improve the realty, and that you will file a mechanic’s lien against the realty.
7.      Accounting.  Keep a daily activity and expense log accurately and prodigiously, noting all out of pocket expenses, invoices paid, labor, mileage, and projects you do.  You will need these to prove your expenses.  Save all receipts and make an electronic record of them if possible.  Do not cheat on this record.
8.     Inventory.  Take careful inventory, including photographs and notes, of the contents of the realty, including trash, remaining chattel and its condition, disposition of it, vegetation, structures, and any and all damage to the property that makes it less than ideal.  Get this witnessed and notarized.
9.      Maintain.  Start any maintenance work on the property, caring for the yard, putting utilities in your name, and so on, but don’t move in until 30 days have passed.  This allows ejectment or eviction laws to kick in.  In most jurisdictions, after someone has occupied a property for 30 days, the sheriff cannot remove them through trespass laws.  Rather, the rightful owner must sue for a writ of possession and serve it on the sheriff.  If you learn of such a writ court action, honor it BEFORE the court orders it.  Move out and don’t look back. But, file a lien for all your costs and labor time for maintenance.   
10.  If You Move Out. If you must move out because of the owner, court, or sheriff forcing you to, leave the place spotless and in excellent condition better than you found it, and photograph the result, and get an affidavit about it notarized.  Then prepare a full accounting of your costs in maintenance and improvement, and file a mechanics lien against the realty with the county clerk.  This can allow you to get your expenses and labor paid if the realty goes to foreclosure sale.
11.   Habeas. File a petition for writ of habeas corpus seeking to get sheriffs to stop official oppression of adverse possessors.  Sheriffs in Pasco, Polk, Hillsborough, Sarasota, and Palm Beach Counties have arrested APers, accusing them of crimes like criminal mischief, breaking and entering, grand theft, swindle, burglary, and trespass.
a.      Habeas petitions cost nothing to file in Florida
b.      A habeas petition can provide an entry to motions for injunctive and declaratory relief, thus lowering the cost of litigation
12.  Injunction.  Seek injunction against the sheriff arresting you for trumped up crimes because of adverse possession.
13.  Declaratory Relief.  Seek declaratory judgments on the following:
a.      Civil Right.  AP constitutes a civil right inherited under the English Law of Florida and acknowledged by Florida Statute, particularly 2.01, 95.16 and 95.18
b.      Right to Possess. AP of abandoned realty constitutes the claim of right of possession of realty which the owner discarded, as one might discard a potentially valuable item into a dumpster.
c.       Right to Title.  Because owner abandoned and discarded the AP realty, the owner thereby leaves the title to the realty open to anyone who claims it and exercises possessory dominion through AP.
d.      Usufruct.  Such AP operates under the doctrine of usufruct,  the right to make all the use and profit of a thing that can be made without injuring the substance of the thing itself.
e.      Not Trespass. Such AP does not constitute trespass.
f.        Regardless of signs. Such AP does not constitute trespass even if the realty bears prominent “no trespassing” signage.
g.      Not Theft. Talking AP of abandoned realty does not constitute depriving an owner of the right of possession, for the owner has shown the intent never to return to the property by abandoning it.
h.     AP = Civil.  Filing of the notice of AP and physically taking possession of abandoned realty constitute the only two actions necessary to prove intent of AP and to move the possession from criminal to civil.
i.        Abandonment Defined. Abandonment means the voluntary surrender of property (or a right to property) without attempting to reclaim it or give it away. A preponderance of the following items signify abandonment of realty:
i.      Removing virtually all  reasonably valuable chattel, leaving the property empty or essentially/virtually empty -
ii.      Leaving behind trash, junk, and/or debris (not having cleaned the house with care), in spite of leaving behind a few clothes, junk furniture, file cabinet, or boxes of personal effects.
iii.      Removing  tools, estate maintenance equipment, and vehicles from the premises.
iv.      Filing of a lis pendens by a foreclosure plaintiff.
v.      Leaving no word with neighbors as to whereabouts of owner or status of property
vi.      Leaving word with anyone else of intent to abandon
vii.      Shut off of utilities or failure to pay utility bills
viii.      Failure to pay property tax
ix.      Failure to pay homeowner association dues
x.      Failure to maintain yard
xi.      Forwarding address to another residence left at the post office
xii.      Owner's oral or written admission of abandonment of realty.

j.        Intervention.  APer has right to intervene in any administrative or judicial action seeking to deprive the owner of record of ownership or possessory rights in the abandoned realty, including any effort to force a foreclosure sale of the realty.
k.      Recovery of Expense of AP.  If the Sheriff or rightful owner forces the APer from the realty, APer has right to recover from the forcing party/ies or the estate jointly or severally all costs and expenses of possessing and maintaining the AP realty, and
l.        AP Lien.  to file a mechanic's lien against the realty with the County Clerk.
m.   Tort and Abuse of Process.  Any law enforcer who under color of law threatens or forces removal of APer for any reason other than physically stealing or destroying valuable parts of the realty, disturbing the peace, creating a public nuisance, or who initiates contact with and connives with the owner to accuse the APer of trespass or any bogus crime, such as to imply, insinuate, or state that owner will become liable if APer damages the realty, commits a tort against the APer and violates FS 843.0855, simulating legal process under color of law.
n.     Not B&E. An APer does not commit Breaking and Entering or any other crime by entering the premises through locked gate, entering the house through locked door or window, scaling a protective wall or fence, or changing the locks as necessor to take AP and exercise possessory dominion over the realty.
o.      Not Burglary. An APer does not commit burglary or any other crime by removing and discarding trash, debris, detritus, rubble, junk, weeds, or obtrusive, unkempt shrubbage and other vegetation.
p.      Not Mischief, Vandalism. An APer does not commit criminal mischief, vandalism, or any other crime by taking necessary actions to maintain and improve the realty, including erecting new structures in accordance with code and deed restrictions, painting, re-roofing, or resurfacing in accordance with deed restrictions, replacing damaged or worn items like flooring and cabinetry, suitably replacing damaged or unsightly vegetation.
q.      Benefits All.  The APer, by taking AP and maintaining or improving the property, and paying taxes and other fees, provides a valuable, laudable benefit for the realty, neighborhood, neighbors (particularly property values), community, home owner association, county, law enforcers, state, owner, and lienholders, including the foreclosure plaintiff.
r.       Fulfills Mortagor Obligation. The APer of most homes abandoned in foreclosure actually fulfills obligations of the mortgagor stipulated in the mortgage security instrument regarding maintaining the realty in good condition, and this provides an enormous benefit to both the mortgagor and mortgagee.
s.       Right to Occupy or Rent to Another. The APer has the right to dwell on the realty or to allow any nuclear family to dwell on the AP realty, to advertise for such a family, to charge a fee for that family to dwell there, and to do so without divulging the nature of the realty as an AP realty.  The APer may declare "I have the right to exercise possessory dominion over this realty, and you have the legal duty to pay my asking price for dwelling on the realty, and I have the right to evict you if you fail to pay me according to your terms of occupancy."
t.       Right to Sell Usufruct.  The APer has the right to sell, assign, lease, rent, loan, and/or transfer the usufruct, including possessory rights in the AP realty and enjoyment of its fruits to another party, and to provide a deed memorializing the sale of rights which the receiving party may register with the County Clerk.
u.     Register Declatory Deed.  The APer has the right to register a declaratory deed with the County Clerk regarding the APer's own right of possession of the realty against all interlopers other than the owner of record.
v.      Lis Pendens. The APer has the right to file with the County Clerk a Lis Pendens to make any prospective purchaser aware of the APer's possession of the realty.
w.    Sheriff Hands-Off.  If the APer provides the County Sheriff with a copy of the notice of AP, then the Sheriff shall interpret that as a "hands-off" notice and shall take it to mean the Sheriff shall the APer and occupants rights under Florida Constitution Article I Section 21 (“Right of privacy.—Every natural person has the right to be let alone and free from governmental intrusion into the person’s private life except as otherwise provided herein.”), and shall not harass the APer or the occupant of the AP realty, shall not inform, harass, alarm, or stir-up the rightful owner against the APer, shall defend the APer against all interlopers, and shall counsel the rightful owner to take court action under FS Chapter 82 in order to remove the APer from the property, and NOT to attempt to use a trespass complaint to effect the removal.
x.      Reasonable Time to Vacate.  In the alternative to the immediately preceding item, the sheriff must provide adequate opportunity, such as one to two weeks, for APer to find another residence, gather belongings, and remove them and the family in the event the rightful owner seeks to execute a trespass warning against the APer in the first 30 days of AP.
y.      Proper Eviction.  After 30 days of AP, whether or not the APer physically lives on the realty, the rightful owner and sheriff must resort to the means FS Chapter 82 to remove the APer.
14.  AG Opinion.  Seek the opinion of the Florida Attorney General under FS 86.091 regarding each of the above-enumerated declarations of rights.  If the AG declines to opine, seek the opinion of the State Attorney.
15.   Orders.  For each of the above declarations, prepare a corresponding declaratory judgment or order and urge the judge to sign it.
16.  Move In.  After the APer knows the sheriff won’t harass or arrest the APer or occupant, the APer or occupant can move into the AP property.

If you succeed sufficiently in getting the declaratory judgments and/or injunction, the sheriff will leave you alone until the court orders your eviction.  These will provide you effectively with a form of carte blanch to take adverse possession of realty in your judicial circuit.  If you obtain a favorable AG opinion, then sheriffs all over the state will leave adverse possessors pretty much alone, so long as they don’t destroy the realty or its appurtenances or structures.  If the trial court denies your motions for declaratory judgments, you may appeal the rulings.  If the Court of Appeals rules in your favor, the ruling will bind lower courts and sheriffs in all the counties in the district.

As to case law, I don’t have supporting case law yet for the various points of declaratory judgment and injunction enumerated above.  You could err terribly by following the suggestions in this document.  I do not intend them as legal advice.  You should consult an attorney knowledgeable in title law before risking jail and legal expenses over an ill-advised adverse possession. However, I believe if enough people do adverse possession, particularly in this time of record home abandonment and residential vacancies, and rampant foreclosures nationwide, society’s pressure to find and occupy livable homes has reached the boiling point and may explode in the pressure cooker of the present financial crisis and the mortgage crimes that caused it.

For this, adverse possession provides the only practical solution.

[stephendare]

http://www.nbc-2.com/story/14369745/2011/04/01/adverse-possession-claims-surging-in-florida

Imagine walking into your home and someone else was sitting inside saying they are taking it over. That's what's happening to thousands of people across the state. All the person has to do is pay your taxes and you could be put out.

A Cape Coral condo was a part of Thomas Harvey's nest egg.

"It was part of what you might call my 401K," said Harvey.

Using an old Florida law, someone was trying to steal it from under him and Harvey had no clue.

"There wasn't any process to notify me by the county, city or anyone," he said.

The law is called "adverse possession." It is filed it with the property appraiser.

"Unfortunately, all someone has to do is come in, pay your taxes and after seven years they own it," said Lee County Property Appraiser Ken Wilkinson.

The law has been on the books since the 1800s.

Back in those times, the law allowed people to take over abandoned cottages and farmland if they were willing pay the taxes. These days, officials say squatters, trespassers and criminals are using the law to stake claim on vacant or foreclosed homes.

There have only been about 40 open adverse possession claims in Lee County. But the real estate bust has lead to an adverse possession surge.

Hundreds of claims have been filed in Broward, Miami-Dade and Palm Beach counties. Polk County is leading the pack with nearly 800 adverse possession claims.

"It's a bit unfortunate and sad that that's the kind of stuff people do when time are tough," said Harvey.

If the police weren't investigating the man that filed the claim on Harvey's home, he would have never known. But now state lawmakers are pushing to tighten up the regulations.

"That requires them to show proof that they tired to contact that owner who they are paying taxes for," said Wilkinson.

New adverse possession laws will stop people from losing property to people trying to profit on someone else's down fall.

[fieldafm]

What these people are doing is illegal.  It's theft.

Adverse possession is applicable to abandoned properties, not just empty properties.

A property is not abandoned say for instance if a lender is in the process of foreclosing on it, it is being marketed for sale or if it was bought as an investment and being properly maintained by the property owner.  Possession must be open and hostile for this claim to be valid(which would not be the case if the house is being marketed for sale or rented out as a vacation rental and the person that is claiming adverse possession must demonstrate use of the property for a 7 year uninterupted timeframe and be paying property taxes on the parcel(which would notify the owner of your intent to lay claim to title)

100% of the cases in Floirda now are outright fraud and they are all thrown out in court.  It's stealing, plain and simple.  This happens quite a bit with REO/lender owned properties.  It is very prevelant in South Florida.

The guy in Orange Park should be thrown in jail and then be made to pay for the money the taxpayers spent on keeping his sorry self in jail.

[ChriswUfGator]

The purpose of adverse possession is when a neighbor's house accidentally gets built a foot onto the wrong property line, and nobody notices it until there's a squabble. Or there is an error on a deed, and Ma and Pa Kettle build a house and live there, only to be confronted years later with a competing claim due to error. The intent is certainly not to hand out free houses to people who know full well from the outset that they are trespassers. I suspect any judge would be absolutely loathe to award a squatter a free house under AP, and I suspect the rightful owner has an affirmative defense in the form of unclean hands. I also happen to agree with the attorney they interviewed on the telephone, regardless of any argument over an AP claim it doesn't mean they aren't trespassers in the meantime.

[fieldafm]

The purpose of adverse possession is when a neighbor's house accidentally gets built a foot onto the wrong property line

That's one of two reasons a person can claim adverse possession(and one that has a better chance of holding up in court), but what is happening in these instances are possession under a 'no color of title claim'.  We deal with a suprising number of these cases. 

It's fraud and its a PIA to get them cleared up(NONE hold up in court) and usually the person inside has trashed the house before they get tossed out and arrested.

[ChriswUfGator]

What these people are doing is illegal.  It's theft.

Adverse possession is applicable to abandoned properties, not just empty properties.

A property is not abandoned say for instance if a lender is in the process of foreclosing on it, it is being marketed for sale or if it was bought as an investment and being properly maintained by the property owner.  Possession must be open and hostile for this claim to be valid(which would not be the case if the house is being marketed for sale or rented out as a vacation rental and the person that is claiming adverse possession must demonstrate use of the property for a 7 year uninterupted timeframe and be paying property taxes on the parcel(which would notify the owner of your intent to lay claim to title)

100% of the cases in Floirda now are outright fraud and they are all thrown out in court.  It's stealing, plain and simple.  This happens quite a bit with REO/lender owned properties.  It is very prevelant in South Florida.

The guy in Orange Park should be thrown in jail and then be made to pay for the money the taxpayers spent on keeping his sorry self in jail.

Agreed.

And I don't see one of these ever succeeding, the squatter/trespasser (which is what they really are) would, IMO, be barred in equity under the doctrine of unclean hands from succeeding on a claim they knowingly manufactured from the beginning by trespassing. And even if that weren't the case, what court is actually going to just give a squatter a free house? And what appellate court will say any different? The whole idea is repugnant, nobody is going to go along with this. If nothing else, I suspect the stretched interpretation these squatters are using would be void as against public policy.

[stephendare]

apparently this is a favorite flavor for the sovereign citizens nonsense

[stephendare]

The Florida Legislature agrees:

http://capitalsoup.com/2011/05/04/florida-legislature-unanimously-passes-adverse-possession-reform-bill/

Tallahassee, Fla. – This morning, by a unanimous vote, the Florida House of Representatives passed SB 1142/HB 927 Adverse Possession sponsored by Rep. Ken Roberson (R-Port Charlotte). This bill, which substantially reforms the law relating to adverse possession, was filed as a result of the ongoing abuse of the current adverse possession statute to the detriment of landowners throughout Florida.

Senator Paula Dockery (R-Lakeland), the Senate sponsor, stated, “The Senate passed this bill last month and I am very pleased that the House has shown by today’s vote that the members recognize the importance of this issue.”

Currently, Polk County has over 720 adverse possession filings, and many other counties have seen an increase in the number of filings. The abuse of this antiquated statute is creating tremendous hardships for property owners, tax collectors and property appraisers. This legislation will discourage abuse of the adverse possession process and improve the administration of these claims for the benefit of both record landowners and adverse possessors with legitimate claims.

“I am proud to sponsor legislation that will protect private property rights in Florida,” stated Rep. Roberson.

The legislation, which has passed both the House and the Senate, will now be sent to the Governor to be signed into law.

[ChriswUfGator]

The purpose of adverse possession is when a neighbor's house accidentally gets built a foot onto the wrong property line

That's one of two reasons a person can claim adverse possession(and one that has a better chance of holding up in court), but what is happening in these instances are possession under a 'no color of title claim'.  We deal with a suprising number of these cases. 

It's fraud and its a PIA to get them cleared up(NONE hold up in court) and usually the person inside has trashed the house before they get tossed out and arrested.

I'm well aware of the difference, field.

I was just giving a general explanation for those who would otherwise not understand why adverse possession even exists. Did you read the rest of my post, or just the one sentence you quoted?

And regardless, we happen to agree with each other on this issue...

[stephendare]

Here is a New York Times article on the subject.  They seem to think that its a natural way to find housing for the homeless.

http://www.nytimes.com/2010/11/09/us/09foreclosure.html

NORTH LAUDERDALE, Fla. — Save Florida Homes Inc. and its owner, Mark Guerette, have found foreclosed homes for several needy families here in Broward County, and his tenants could not be more pleased. Fabian Ferguson, his wife and two children now live a two-bedroom home they have transformed from damaged and abandoned to full and cozy.
Mark Guerette has claimed several homes in Broward County, hoping to gain permanent ownership after seven years.

Michael McElroy for The New York Times

Juslaine Charles and Fabian Ferguson, right, pay rent to Mark Guerette on a home he took.

There is just one problem: Mr. Guerette is not the owner. Yet.

In a sign of the odd ingenuity that has grown from the real estate collapse, he is banking on an 1869 Florida statute that says the bundle of properties he has seized will be his if the owners do not claim them within seven years.

A version of the same law was used in the 1850s to claim possession of runaway slaves, though Mr. Guerette, 47, a clean-cut mortgage broker, sees his efforts as heroic. “There are all these properties out there that could be used for good,” he said.

The North Lauderdale authorities, though, see him as a crook. He is scheduled to go on trial in December on fraud charges in a case that, along with a handful of others in Florida and in other states, could determine whether maintaining a property and paying taxes on it is enough to lead to ownership.

Legal scholars say the concept is old — rooted in Renaissance England, when agricultural land would sometimes go fallow, left untended by long-lost heirs. But it is also common. All 50 states allow for so-called adverse possession, with the time to forge a kind of common-law marriage with property varying from a few years (in most states) to several decades (in New Jersey).

The statute generally requires that properties be maintained openly and continuously, which usually means paying property taxes and utility bills.

It is not clear how many people are testing the idea, but lawyers say that do-it-yourself possession cases have been popping up all over the country — and, they note, these self-proclaimed owners play an odd role in a real-estate mess that never seems to end. Though they may cringe at the analogy, as squatters with bank accounts, these adverse possessors are like leeches, and it can be difficult to tell at times whether they are cleaning a wound already there, or making it worse.

Either way, Florida is where they thrive.

Many residents of the Sunshine State have grown accustomed to living beside a home left vacant for years. Now hundreds of these mold-filled caverns, their appliances long ago spirited off, are being claimed by strangers.

“There are all kinds of ways the people try to manipulate the system to their own financial gain,” said Jack McCabe, an independent real estate analyst with McCabe Research and Consulting. “And you are going to see it here because Florida is the capital of real estate fraud.”

Mr. Guerette, who now faces up to 15 years in prison, insists that his business is legitimate and moral. He said he got started last year, driving around working-class neighborhoods in Palm Beach and Broward Counties, looking for a particular kind of home: not just those with overgrown lawns and broken windows, but houses with a large orange sticker from the county reading “public nuisance.”

The stickers signaled owners out of touch: the county or city was unable to reach them.

Mr. Guerette filed court claims on around 100 of these properties, which appear to be in the process of foreclosure. Then he chose 20 that could be most easily renovated and sent letters to the owners and their banks — presumably overwhelmed — to make them aware of his plans.

Florida does not require notification. One state lawmaker tried and failed to close that loophole last year with a bill that never passed. But it hardly mattered. Nineteen of the owners and their banks did not respond, Mr. Guerette said.

So he set about fixing up the unclaimed properties. In some cases, he just mowed the lawn and replaced stolen air conditioners or broken windows; in other cases, like with Mr. Ferguson, he let tenants make improvements in lieu of rent.

At his peak last year, he said he managed 17 homes with renters, some of whom he found on Craigslist, others through a Christian ministry in Margate, Fla.

Copies of leases show Mr. Guerette included an addendum noting that he was not the legal owner. Tenants like Mr. Ferguson and his family, who had been homeless before moving in last year and paying $289 a month, see Mr. Guerette as a savior.

And neighbors generally agree. “There is no telling who was in and out of that house,” said Rawle Thomas, who lives next door to Mr. Ferguson and his family. “I like them, and I’d much rather have someone in there than the house empty.”

In other cases, though, adverse possession has been more aggressive and problematic. In Palm Beach County, Carl Heflin spent a year in jail awaiting trial on fraud, trespassing and burglary charges. But after accepting a plea agreement and the rejection of his adverse possession claims, he was arrested again on charges of trying to collect back rents on houses he had tried to possess.

“The whole time he was harassing us and threatened to burn the house down with my kids in it,” said Misty Hall, a single mother of two who rented a home from Mr. Heflin.

Sam Goren, city attorney for North Lauderdale, said any benefits were outweighed by a simple fact that adverse possessors often overlook: they are trespassing.

Michael Allan Wolf, a real estate expert at the University of Florida law school, said adverse possessors also disrupt the chain of title. Rightful owners end up having to evict tenants. The time between foreclosure and legitimate resale may be extended.

Even when adverse possessors help stabilize neighborhoods, “It is not an effective or efficient cure for the foreclosure crisis in Florida,” Professor Wolf said.

Mr. Guerette says his goals are more charitable. After several marriages, six children and some minor trouble with the law, he said, he is now a born-again Christian who sees his new company as a way to make an honest living, and solve a dire need.

His tenants confirmed that after he was arrested in April, he told them they could stop paying rent. Even if he is not allowed to keep taking homes, he said, why should needy people not be matched with homes left to decay?

“There are over 4,000 homeless in Broward, and the number is growing all the time,” he said. “I thought I could use these homes and put people into them. It could be a good thing.”

He added: “It’s not rocket science.”

[ChriswUfGator]

Here is a New York Times article on the subject.  They seem to think that its a natural way to find housing for the homeless.

And they may be right, lol. I suppose jail can be considered housing.

[avs]

The two local ones that happened actually happened to two properties listed through the broker I have my license with.  My fav part about the whole thing is that the guy is a Reverend.   

I agree that it really is theft.  The property isn't abandoned if it is in foreclosure or the owner is trying to short sell or something.  As Realtors, we have to be very careful and really watch our vacant listings carefully.  Also, as always, be careful entering vacant property.

It is a very interesting topic considering everything going on in the economy today.

[stephendare]

Here is a New York Times article on the subject.  They seem to think that its a natural way to find housing for the homeless.

And they may be right, lol. I suppose jail can be considered housing.

Providing that someone complains and has the arrested, right?

Banks are kind of preoccupied right now, what with the millions of foreclosed properties. 

Plus they keep busy trying to hide toxic assets from the feds.  Its hard to make an argument that the house is a good loan when you are filing to have squatters removed from it.

Notice that in the case of Marcellus, it wasnt the bank that bothered to turn him in, it was only after a short sale when the bank had already recovered a bit of money that Marcellus' presence turned out to be a problem.

[stephendare]

20% Of the properties in Florida are vacant?  AVS, how many properties can a realtor watch closely?

http://www.freerepublic.com/focus/f-news/2692590/posts

Nearly 20% of Florida homes are vacant
Yahoo News ^ | March 18, 2011 | Les Christie

Posted on Tuesday, March 22, 2011 12:50:20 AM by Clintonfatigued

It's not always easy to feel sorry for sunny Florida. But it just got hit with another blow.

On Thursday, the Census Bureau revealed that 18% -- or 1.6 million -- of the Sunshine State's homes are sitting vacant. That's a rise of more than 63% over the past 10 years.

Having this amount of oversupply on the market will keep home prices depressed and slow any recovery.

During the housing boom, Florida was among the hottest real estate markets in the nation. Homes were snapped up by the state's growing population as well as hordes of investors confident that prices would continue to soar.

"You'd drive through downtown Miami and see 30 or 40 cranes sticking up in the air," said Michael Larson, a housing market analyst for Weiss Research.

The bust brought an end to that. Development ground to a halt. Retirees stopped relocating. And prices started falling and vacancies rising.

"Housing went from being the preeminent investment of choice to toxic waste," added Richard DeKaser, an economist with the Parthenon Group.

The vacancy problem is more dire in Florida than in any other bubble market: In California, only 8% of units were vacant, while Nevada, the state with the nation's highest foreclosure rate, had about 14% sitting empty. Arizona had a vacancy rate of about 16%.