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Florida’s Adverse Possession Laws: Reward for Sweat Equity, or Theft by Land Squatters?

Posted by Jane F. Bolin, Esq. | Oct 18, 2017 | 0 Comments

You'll have to prove 7 years of trespassing without getting caught, for starters.

Adverse possession. Ever heard of it? It's a law on the books in Florida. Depending on how you look at it, adverse possession is either a justified transfer of land to someone who will put a piece of property to a more beneficial use – or it's a seemingly unfair theft of land by squatters.

How does a law like this work, anyway? Here's a brief overview of the way it's set up in Florida.

Adverse Possession

In the state of Florida, the law of adverse possession dictates that if an individual moves into an otherwise neglected property and then improves the property, they can be granted title to it after a period of time.

How long is that period of time? Florida adverse possession laws require an individual to occupy this property for at least 7 years. Additionally, they need what's known as a Color of Title, or proof that they've paid property taxes during those 7 years.

But, isn't that trespassing?

Initially, it is – and that's illegal. However, when a trespasser continues this activity for an extended period of time, say 7 years, the law may give them the right to remain on the property. It's difficult to imagine that someone could secretly live on a property for 7 years, and all the while pay taxes and make improvements on it. For this reason, Florida's laws state that the “trespasser” must be living on the land exclusively and openly.

It's this lack of evasion (as well as paying property taxes), that defines the requirements of adverse possession. Common sense and concern about being arrested for trespassing is why you don't see people just moving in to uninhabited Florida homes. Generally, the law is to help homeowners who have inherited property passed down through generations where there is no actual title documentation. And this last part is probably the best way to understand what “Color of Title” really is.

So, how do you make a valid adverse possession claim?

In Florida, you're transformed from an illegal trespasser to someone with the right to claim adverse possession when you can satisfy these 4 challenges:

  1. You have been in possession of the land for an unbroken period time, during which you have not shared possession of it with others. This is known as Exclusive and Continuous Possession.
  2. Your act of trespassing must be obvious – or in other words, you've not attempted to hide out on the property. This is known as Open and Notorious Possession.
  3. You can't hire somebody to do this for you. You must trespass and then be present on the land, and you have to treat it as if you actually did own it. This is known as Actual Possession.
  4. You simply have to occupy the land, regardless of your knowledge that it is actually not yours. However, you have to be aware that you are trespassing, or at least believe that you have some kind of claim to the property, such as an incorrect deed. This is known as a Hostile Claim.

Why is there something like adverse possession, anyway?

It isn't a form of punishment to force property owners to give up properties they abandon. The original idea behind most adverse possession laws is to keep land useful. It goes back to Roman times, where laws allowed someone in possession of land for a period of years to claim it in exchange for good custodianship – if the rightful owner did not step forward to claim it first.

In modern times, adverse possession is more likely to come into play with fences and driveways. Here's an example. You purchase a piece of property and put up a fence, but it actually extends a few feet onto your neighbor's property. Your mistake was honest. It was based on incorrect property boundary information.

Your neighbor says nothing about it. Remember those 4 elements for adverse possession? Your fence has been right there, both “notorious” and “open” for, let's say, 12 years. If that period of time exceeds the statute of limitations for trespassing, the law of adverse possession makes you the rightful owner of that few feet of your neighbor's property.

On the other hand, let's say you put in a new driveway that encroaches on your neighbor's property. The cement is dry by the time the mistake is discovered. Although you are legally trespassing on your neighbor's property with your new driveway, they can give you written permission to keep the encroachment.

This will prevent you from gaining the right to claim adverse possession. You'll have to do something about that driveway if you want to sell the house. The permission to encroach on your neighbor's property can't be passed on to future owners.

These driveway and fence scenarios tend to demonstrate the majority of examples of adverse possession – and that makes sense. It's not impossible, but it is improbable, that you can trespass onto someone else's property, improve it, and even pay taxes on it for 7 years without the true owner saying, “Hey, wait a minute!”

Nevertheless, be aware that there is a Florida State law which outlines the way adverse possession can be proved – and used – to make a claim of ownership.

About the Author

Jane F. Bolin, Esq.

Founding Member, Managing Partner


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