Frauds or Friends? Use of Adverse Possession to Occupy Homes
Squatters Occupying Abandoned Homes May Have Claim Against Owners While Authorities Charge Adverse Possession Filers With Fraud.
A company called Helping Hands Properties, Inc. claimed 48 properties in Broward, including a $1 million house in Coral Springs. Another, Saving Florida Homes, Inc. filed notice in official county records that it was taking possession of 100 homes in Broward and three in Palm Beach County - up to 10 properties were claimed in just one day. The company owners say that taking possession of dilapidated properties improve the neighborhood. Authorities say they are just trespassing and stealing. Are these companies just manipulating the system for their own benefit or are they performing a public service? What can you do if this happens in your neighborhood?
Adverse Possession - What is it?
Florida statutes address adverse possession - a process to obtain title without buying a property. To acquire title by adverse possession, such possession must be adverse, hostile, open or notorious, exclusive and uninterrupted, for seven years.
There are two types of adverse possession. Adverse possession under "color of law" (§95.16, Florida Statutes) means the possessor’s ownership claim is based upon a written document in the county public records. Adverse possession without "color of law"(§95.18, Florida Statutes) means there is no recorded document purportedly creating ownership.
To claim adverse possession under color of law, the document (deed, etc.) does not have to be valid. However, the possessor must have accepted the instrument in the honest belief that it conveyed ownership. Possession means that the property has actually been used or enclosed.
Adverse possession without color of law is not based on any recorded document, but mere use of the property is not enough to claim ownership or entitlement. The possessor must pay the property taxes and installments of all special improvement liens levied against the property by the state, county and city. The additional requirement of tax payments not only evidences the possessor claims ownership, but places the record owner on notice that property taxes are being paid by someone else. That gives the record owner an opportunity to investigate and take action.
Remember - possession must be open, notorious and hostile to claim adverse possession. Permissive use, like when you allow kids to play soccer, use motorbikes or camp on the property, means the possession is not adverse.
In a New York Times article, one of the company owners explained he allowed tenants to fix up the property instead of paying rent. Strategic defaults create plenty of opportunities to seize abandoned homes. Letters sent to property owners and banks notifying them of the plan to take over the home were reportedly ignored. He now faces up to 15 years in prison.
This tactic can pose problems for community associations. More and more community associations have acquired title to homes as a result of foreclosures. Those associations must monitor the use of the property and file eviction actions to remove unauthorized occupants to avoid claims of adverse possession. The same is true for bank-owned properties. A lender may not be aware of the actual use or condition of the home, especially if its not actively marketed for sale. The association needs to remain cognizant of the actual use and take action to verify whether that use complies with the governing documents. Ignoring use violations creates even further problems, especially when the association tries to take action much, much later.
