Property is one of the most valuable investments you can focus your capital on. In the best case scenarios, you can purchase your land, improve it, rent it out, or live on it without any disruptions. But what about when it’s necessary to leave it unoccupied for some time. Perhaps your development finances are taking longer than planned to gather or you’re waiting for the value to appreciate before flipping? Well, this is when complications can arise.
Adverse possession has become a real concern for Florida landowners, particularly in recent years where opportunistic parties have aimed to take advantage of the law and target vacant properties. Let’s take a closer look at how adverse possession works in Florida and what you should know about the legal processes involved.
What is Adverse Possession?
So, what is adverse possession? At its core, adverse possession is a practice in which someone can claim ownership of land or a property as a result of their occupation of it for a period of time.
This is something that usually homeowners may come up against in the case of long-term squatters. If certain conditions are met, the title to your legally-owned property can be transferred to someone else.
Aside from the obvious loss of your investment, there can be other consequences to adverse possession. These include:
- Clouded Title: A clouded title arises when there is uncertainty or dispute regarding the true ownership of the property, often due to adverse possession claims. A property with a clouded title may encounter difficulties in the real estate market, as potential buyers may be hesitant to invest in a property with unresolved ownership issues.
- Legal Costs: Defending against adverse possession claims can be costly and time-consuming for property owners. Legal proceedings to challenge adverse possession claims often involve complex evidentiary issues, expert testimony, and extensive litigation. You might incur significant legal fees and expenses in your efforts to protect your ownership rights.
- Impact on Property Value and Use: Adverse possession disputes can adversely affect the value and use of the property. Uncertainty surrounding ownership rights may diminish the property’s market value and limit its potential uses. Additionally, adverse possession claims can impede property owners’ ability to access financing or obtain insurance for their land.
- Inequity: Adverse possession laws, while intended to prevent land from lying idle and promote efficient land use, can sometimes lead to inequitable outcomes. In some cases, adverse possessors may exploit loopholes or manipulate the Florida legal system to gain ownership of valuable property at the expense of rightful owners. Such outcomes can undermine public confidence in property rights and the rule of law.
These types of consequences are why it’s so important to gain a better understanding of the concept of adverse possession. The more knowledge you have at your disposal, the better you can take steps to protect your investment.
The Requirements for Adverse Possession in Florida
Adverse possession is not something that an occupant of your property can claim whenever they feel like it. Fortunately, Florida law offers a certain amount of protection to property owners by putting certain conditions that must be met by the occupant. Naturally, an experienced real estate attorney can help you to understand whether or not an unauthorized occupant potentially meets these criteria. Nevertheless, the criteria are worth exploring so you can see how they might fit into current property disputes and also so you can take preventative steps to ensure your unoccupied property doesn’t run the risk of being hit with such claims.
Open and Notorious Use
To claim adverse possession in Florida, the occupancy of the land must be open and obvious to anyone who might observe it. This means the possessor’s use of the land can’t be done in secret or be purposely hidden. In other words, it should be obvious enough that a reasonable owner would become aware of the occupation pretty quickly.
Continuous Possession
Continuous possession is another essential requirement for adverse possession in Florida. An occupant can’t just force entry into your property and immediately claim ownership rights. The adverse possessor must occupy and use the land continuously for the statutory period prescribed by Florida law. Under Title VIII Chapter 95 of the Florida Statutes, the occupant must have been in “continued possession of real property for 7 years.” There can’t have been any interruptions to this occupancy, or the claim may be considered invalid.
Payment of taxes and liens
One of the key requirements in Florida for adverse possession is that the occupant must show that they’ve been paying property taxes. Indeed, the Florida statutes assert that the occupant must also have paid any outstanding property taxes and liens within a year of occupancy.
The Legal Process
So, as the true property owner, how does the legal process of defending against an adverse possession claim work? Well, there are various steps involved and you may even become aware of the intent for the possessor to make a claim before the official process is in play. It’s vital to collaborate with an experienced real estate attorney at the earliest opportunity. They’ll be able to talk you through the likely process you’ll face, any actions you can take to limit the fallout, and your best routes for defense. In general, though, the process will run as follows.
Receipt of Notice
The legal process typically begins when the property owner receives notice or becomes aware of the adverse possession claim. The occupant may have simply filed a claim for adverse possession with the relevant local property assessor, resulting in a notice to you. In some instances, you might discover their intent to file a claim by witnessing their unauthorized occupation or use of the property, or be notified by neighbors or third parties.
Assessment of the Adverse Possession Claim
Upon learning of the adverse possession claim, property owners should promptly assess the validity and merits of the claim. This involves consulting with an attorney and collaborating in reviewing relevant documentation, such as property records, surveys, and evidence of possession, to evaluate whether the adverse possessor has satisfied the statutory requirements for adverse possession.
Gathering Evidence and Documentation
Property owners must gather evidence and documentation to support their defense against the adverse possession claim. This may include property records, surveys, tax documents, photographs of the property, witness statements, and any other relevant evidence demonstrating ownership and active use of the property.
Initiation of Legal Proceedings
If necessary, property owners may need to initiate legal proceedings to challenge the adverse possession claim and protect their property rights. This may involve filing a lawsuit, such as a quiet title action, to establish the property owner’s rightful ownership and remove any cloud on the title caused by the adverse possession claim.
Presentation of Defenses and Counterarguments
Property owners—usually through their legal counsel—will present defenses and counterarguments to refute the adverse possession claim. This may involve challenging the adverse possessor’s compliance with statutory requirements, asserting ownership rights based on title documents or historical evidence, and demonstrating interruptions in the adverse possessor’s possession.
Resolution of the Dispute
Ultimately, the dispute over adverse possession may be resolved through negotiation, settlement agreements, or court rulings. Property owners should work closely with their legal counsel to pursue the most favorable outcome and protect their property rights effectively. It’s important to remember, though, that Florida’s adverse possession rules are very strict and successful claims are relatively unusual in recent years, due to changes in statutes to favor true property owners.
Be Vigilant and Proactive
There can be various reasons that your property is unoccupied or unused for some time. This shouldn’t necessarily threaten your rights as the owner. It is vital to protect yourself against adverse possession claims by first being vigilant about who may be using your land without permission or incorrectly, preferably through regular inspections of the property. From here, you need to be proactive about minimizing the potential for claims from unauthorized occupants. Collaborating with an experienced real estate attorney can empower you to arrange legal removal of those using land without your permission and defend against claims through the use of litigation.
