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Adverse Possession

What is Adverse Possession?

Adverse possession is powerful law whereby someone can take title to land without ever having purchased it if they meet certain legal requirements. "Adverse possession" has been defined as an actual and visible appropriation of property commenced and continued under a claim of right that is inconsistent with and hostile to the claim of another. It has also been defined as the open and notorious possession and occupation of real property under an evident claim or color of right or, in other words, a possession in opposition to the true title and record owner, commenced in wrong and maintained in right. Ultimately, continued adverse possession and occupation for the period and, under the circumstances, stated by statute is a means of acquiring title to lands. Adverse possession of lands maintained for the time provided by statute vests the occupant with title against that claimed either by strangers or former owners, as completely as if there had been a conveyance by deed. Generally, unless the contract for sale of land calls for a record title, title by adverse possession is sufficient to constitute marketable title, which the vendee must accept.

Adverse Possession can occur With or Without Color of Title

In Florida, there are only two ways to acquire land by adverse possession, either under color of title such as a deed or without color of title by open, continuous, actual possession of the property. Each method is discussed below.

Adverse Possession With Color of Title

The general rule in Florida is that the doctrine of color of title is available only in cases where the instrument purporting to be a conveyance is accepted in good faith and in the honest belief that it vests the title in the claimant.

For the purpose of acquiring adverse possession under color of title, the property is deemed possessed when: (1) it has been cultivated or improved; (2) it has been protected by a substantial enclosure; (3) the property it not enclosed but is used as provided.

Property is deemed possessed when it has been usually cultivated or improved. The occasional repair of a fence on the plaintiff's land by the defendants is not an improvement of the land.

Property is also deemed possessed 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.

Illustration:

The conveyance and reconveyance of property was insufficient to quiet title in a claimant under the theory of adverse possession under color of title where no conclusion other than speculation could be made concerning the grantor/grantee's belief that she conveyed or received title to the disputed waterfront property by the deeds in question. Thus, the trial court improperly conferred good title on the claimant, there being no evidence that the deeds had been accepted in good faith. However, where the claimant is mistaken as to the strict legal effect of the conveyance on which he or she bases his or her claim or right, there is no question that such conveyance would constitute color of title sufficient to satisfy that requirement of the statute.

Adverse Possession Without Color of Title

Color of title is not essential to establish a claim of title to property by adverse possession. Actual continued occupation for seven years of premises under a claim of title, but not founded on a written instrument or judgment, is sufficient to constitute adverse possession of the premises actually possessed or occupied, if the adverse claimant made a return of the property by proper legal description to the property appraiser of the county where the property is located within one year after entering into possession and had subsequently paid all taxes and matured installments of special improvement liens levied against the property by the state, county, and municipality, and provided such possession and occupation otherwise conforms to the statutory requirements.

One claiming title by adverse possession without color of title who fails to show a return and payment of taxes as required by the statute cannot sustain his or her claim. For the purpose of constituting adverse possession without color of title, land is deemed to have been possessed and occupied only under either of the following circumstances:

  1. Where it has been protected by a substantial enclosure.
  2. Where it has been usually cultivated or improved.
Illustration:

Claim of title to an unsurveyed island by adverse possession without color of title could be established only as to that portion of land claimed which was actually occupied by the claimants or their predecessors and definitely described in the deed to their ancestor admitted in evidence as bearing on the extent of their adverse possession in the absence of evidence of a legal description of any other land involved.

Burden and Standard of Proof at Trial

A party claiming title to adverse possession bears a heavy burden of proof at trial because the acquisition of rights in another's land is not favored in the law, and will be restricted. Therefore, each element of adverse possession must typically be proven through clear and convincing evidence at trial. The parties have a right to a jury trial in adverse possession claims.

Attorney’s Fees

Neither Florida’s adverse possession statute not case law authority provide for an award of attorney fees.

What’s Next?

Adverse possession cases turn on the particular facts and circumstances and are usually litigated along with other claims that deal with the property such as partition, slander of title, quiet title, and equitable lien. If you have been sued for adverse possession then call Miami litigation attorney Andrew J. Pascale to evaluate your case and put his knowledge of the law and experience to work for your benefit.

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