Acquiring Land Ownership by Adverse Possession is Pretty Hard to Do

At common law, one could acquire ownership of property by meeting four (4) criteria: exclusive possession, use adverse or hostile to the title holder, use which is open and obvious, and the use is continuous. In England, the continuous use was a minimum of thirty (30) years. When carried to this country, states adopted laws which generally shortened the period of time for continuous use and imposed other restrictions.

Florida statutes provide two methods of acquiring title by adverse possession: adverse possession with color of title and without color of title. Both require continuous, open, exclusive and notorious possession of property for seven (7) years. Both require the possession to be adverse or hostile to the real owner. Adverse possession under color of title includes a requirement that the claimant have a recorded written instrument purporting to convey the property to the claimant or a court judgment or decree purporting to give the claimant ownership rights.

The statute on adverse possession under color of includes four (4) examples of possession: (a) the property has been usually cultivated or improved; (b) the property has been protected by a substantial enclosure (only the part of the property within the enclosure is deemed possessed); (c) if not enclosed, the property has been used to supply fuel or fencing timber husbandry or for the ordinary use of the occupant and (d) if a known lot or single farm is been partly improved, the unimproved part is considered occupied for the same length of time as the improved or cultivated part.

The statute on adverse possession without color of title provides other requirements. Under this statute, the claimant must pay all property taxes and installments for special improvements as they come due against the property. The claimant must also file a return with the County Property Appraiser on a form provided by the Department of Revenue including the name of the person claiming adverse possession, date the person entered possession and the legal description of the property. The Property Appraiser must then assign a parcel identification number to the property, if one was not previously assigned, and add a notation to the tax roll that an adverse possession claim has been submitted.

Adverse possession without color of title seems pretty easy, but the actual property owner does have a way to quickly reverse the Property Appraiser’s action. The Property Appraiser must remove the notation that an adverse possession claim has been submitted and remove the return from the Appraiser’s records if the owner of record provides a receipt confirming the owner has paid the property taxes during the period the person claims adverse possession, or a certified copy of a court order dated after the return, or if the Property Appraiser receives a certified copy of a recorded deed dated after submission of the return from the person claiming adverse possession establishing title in the owner of record.

The statute provides even more protection for the owner of record. If the owner of record pays the property taxes after an adverse possession claimant has paid them, the Tax Collector must apply the record owner’s payment and refund the previous payment made by the adverse possession claimant. That effectively ends the ability to claim payment of taxes and assessments for adverse possession without color of title.

The statutes seem clear enough, but adverse possession claims do not succeed easily. Since they are an effort to take title from one person and give it to another, why does adverse possession even exist? The theory is that it is to protect those who are in continuous possession of land utilizing it, spending money on it and may think they own unit. It can pop up in disputes among adjacent property owners as well as when someone wants to own land and gets a questionable deed or files a return with the Property Appraiser.

Most of the adverse possession cases these days involve adjacent property owners and focuses on the nature of the use. Was it truly exclusive and was it adverse or hostile to the title holder? In many cases, the Court finds that use was consensual because the real owner did not object. That ends the claim of adverse and hostile.

What makes these cases even more difficult for the claimant is the standard of proof. A person claiming title by adverse possession must establish all of the elements of adverse possession by clear and convincing evidence. Most civil lawsuits require a party only tip the scales ever so slightly with a preponderance or greater weight of the evidence standard. Clear and convincing evidence pushes the scale solidly in favor of the claimant. That can be difficult when there are competing witnesses telling different stories.

Florida judges have heard thousands of adverse possession cases, but perhaps reviewing the facts of one case will confirm how difficult it might be to obtain title that way. In the case of Revels v. Sico, Inc., the claimant alleged she and her family had mowed the disputed strip for years, used part of it as a driveway, placed a cement driveway pillar on the strip, and maintained a fence which separated the strip from the remainder of the neighbor’s property. The trial judge ruled that such evidence did not establish use was hostile and was not by implied permission or mere acquiescence. The claimant appealed and lost on appeal.

Adverse possession is alive and well in the State of Florida, but ability to acquire title through adverse possession could be considered on life support.